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Veterans Affairs Claims Process CLE – Military Lawyer Greg Rinckey – Tully Rinckey PLLC

Veterans Affairs Claims Process CLE - Military Lawyer Greg Rinckey - Tully Rinckey PLLC



everyone who leaves the military service of the United States gets a discharge we refer to it it's called a dd-214 anyone that's served in the military knows that their DD 214 is one of the most important papers that you get when you leave the military there's types of discharges that you can get when you leave the military the first the highest discharge you can get is an honorable discharge underneath an honorable discharge is a general discharge under honorable conditions underneath that is an other than honorable discharge below that is a bad conduct discharge and down the bottom is the dishonorable discharge you can only get a bad conduct discharge or a dishonorable discharge from a court-martial which is akin to a criminal trial in the civilian world so the types of discharges issued by the military on what we just went over in order to qualify for eligibility for VA benefits you have to have a discharge that's characterized as conditions other than dishonorable and that's a little bit confusing because a lot of people would think well long as I don't have a dishonorable discharge I'm entitled to VA benefits well the VA has their own little set of rules and basically they will consider anything that is not a general discharge or an honorable discharge potentially a dishonorable discharge so if a service member comes to you or a veteran comes to you and says hey I served in Vietnam when I got back I got an other than honorable discharge for whatever reason most of the time we see drug use or or other issues it does not mean that they're going to be entitled to DEA benefits what the VA will do is the VA will do its own inquiry to see is the characterization as a whole should we characterize it as as honorable or should we characterize it as dishonorable now the majority of the time if you can prove that the service member served in a combat zone you might be able to prove that as a whole their service should be characterized as honorable so a lot of times we can get service members that have other than honorable discharges sometimes even bad conduct discharge is to be entitled to certain VA it's statutory bar to benefits under certain circumstances if you're a deserter if you spy on the United States those are bars statutory bars which basically mean that you cannot get VA benefits establishing eligibility for benefits va service department records what normally happens is the service member when they leave the military is anyone in here a veteran okay so when you left the military likely what happened is you indicated on your dd-214 when you out processed out of the military where your home of record was going to be and what used to happen was your military treatment file would be sent to the VA the paper file would be sent to the VA and quite honestly it hasn't really changed that much in 50 years we the military still basically sends a paper copy of your records and a lot of times what happens with the VA is the VA loses those records so we're gonna talk about ways that we can recreate records when there's no military records available the VA and the military is now if anyone gets treatment at the VA they would know that the VA is basically all paperless if you go to for your treatment at the VA now everything is done electronically and they have an electronic record there's no more paper records at the VA however the military for the most part is not as up to speed as the VA so the military branches are still using paper records for the most part some of them are now using electronic records but the two systems of course don't talk to each other right now so you have paper records that a lot of times we'll go to the VA and then you have the VA creating electronic records and this creates confusion to say the least right now there are over 800,000 veterans claims pending adjudication the average time to adjudicate a veteran's claim from the time it's filed to the time as adjudicate is about 18 months to get the first level of adjudication so as you can see many veterans are very frustrated and a lot of them will be very frustrated when they come to see all of you there is a bar that goes all the way back to the Civil War that says because all lawyers are unscrupulous we cannot represent represent veterans at the initial stage of filing a VA claim and this goes back to the 1860s however we can represent a service member for a fee or veteran furphy after there's one initial denial so you basically have to wait until the veteran has gotten a denial of a benefit and then you can file on their behalf for a fee before that you're not allowed to charge a fee to represent a veteran so what will happen is basically claimants they submit their documents the VA then adjudicates the issue of the characterization of service so if someone has an other than honorable discharge or bad conduct discharge basically the VA will go through the adjudicative process to determine are they going to be entitled to benefits a lot of times what will happen is the VA will come back and say okay we're going to deny anything that is not service-connected and what do we mean by service-connected sir service-connected means anything that basically is not connected to your time and service so if you have a veteran that comes back and he lost part of his arm in combat comes back and gets an other than honorable discharge for some other reason the VA will treat him for anything related to the service-connected injury but will not treat him for anything that is not service-connected exceptions to eligibility for benefits there is an insanity exception which really needs to be updated because it really shouldn't be called the insanity exception if you can prove if somebody was suffering from a severe mental health issue at the time and that related to their discharge and that's why they got an oth you might be able to get an exception and be treated at the VA forfeiture there's certain provisions that if you are convicted of a crime your VA pay will stop your disability pay will stop and willful misconduct is also another reason where your VA pay will stop and your eligibility for benefits will stop benefits for service-connected disabilities and let's see general requirements to receive disability compensation benefits there's two types of benefits that you can really get when you file for va and I want to talk about each one kind of separately so it doesn't get so confusing is you're entitled to if you file with the VA one of the things that most veterans will come to you for is they want to get compensation so compensation basically compensates a veteran for the loss of their earning potential because of a service-connected disability or a disability it's not what we would say disability payment it's not like SSI or it's basically compensating the veteran for their loss of their ability to earn a living so veterans will come to you and say that they want to file for a disability compensation or a compensation pension and what will happen is is they will be raided once they file the application you can file online if you just go to VA gov the application is right online they file the application and then what will happen is there will be a comp and pen physical where they will go in to the VA and the VA will give them a physical and they will basically start adjudicating the case along with all records that the veteran has the VA has an OP as an obligation and statutorily to assist the veteran in filing the claim and what will happen is the VA will look through the medical records from the military treatment records will look through the VA records and you can also submit additional records as well from your own doctor and we'll talk about that as we proceed tonight because I strongly recommend that you do that service connected service connection is an important concept when filing for VA compensation or VA care service connection basically means that whatever injury it is has to be service-connected it has to be connected to your service in the military it does not mean you have to have received an Kombat does not even mean it had to have happened on the military base for instance I've represented servicemembers who they got into a motorcycle accident while they were driving off-base going home that service connected because service members are considered to be on active duty 24 hours a day you could be in the pool at your apartment complex while you're on active duty playing pool volleyball and break your wrist that is considered service-connected and a lot of veterans do not understand that and when they come in they talk to us or I'm speaking to them and they say wow I never realized I could file for that absolutely they can file for that there are certain exceptions to that someone that has alcohol in their system might not be deemed to be service-connected because now they're at fault now service-connected service-connection is pretty easy to establish if you're on active duty if you're in the Regular Army if you're in the Navy Marines and on active duty if you are in the Guard or reserve you have to basically prove that it incurred while you were doing your drill or you were doing your two weeks or you were somehow it somehow was related to your reserve or Guard time any questions on that in the line of duty is a concept that applies mostly to National Guard and reservists is you have to basically prove that the incident occurred in the line of duty meaning that if you had a motorcycle accident on the way to drill could be considered in the line of duty if you are doing a drill you come home and you slip and fall on the ice outside it's not going to be considered in the line of duty difference between compensation and pension compensation compensates the veteran for loss of earning ability pension there are pensions available to veterans that are making very very low incomes I think the income level this year adjusted is probably about fifteen to seventeen thousand dollars so if you have a veteran that is making under fifteen or seventeen thousand dollars a year they might be eligible for a pension however in order to get a pension most of the time you have to prove wartime service however according to the laws of the United States right now we have been at war since approximately 1991 so anyone who has served in the United States military since approximately 1991 is considered to have had wartime service even though they may not have deployed anywhere they're considered a wartime veteran disability ratings what will happen after you file for your disability is you will get a rating and that rating will basically say we find that your condition is service connected and we rate you the VA has a chart on basically every condition imaginable and the severity of every condition and they have a rate and the rating can go anywhere from a 0% and if you're rated at 0% you're still considered a service disabled veteran all the way up to a hundred percent and in certain instances you can even go over a hundred percent and there's a schedule for raiding disabilities the percentages don't always add up and a lot of times lawyers will call me and say hey I have a veteran here that has a 20% of 20% 20% and they only gave him 40% well the VA math doesn't always add up and they have a chart on basically how they evaluate all the ratings and each condition is basically subjected to each other condition when if there's any overlap sometimes they will reduce a rating so it gets a little confusing especially when you have a veteran coming in and saying hey this should be 60% they're only giving me 40% fundamental requirements for obtaining a service-connected disability compensation you have to have competent evidence of a current disability medical evidence of in-service occurrence or aggravation of a disease or injury a lot of times this will happen where you'll have a World War two veteran come in and say hey I was in the Battle of the Bulge and I have frostbite and I've had frostbite for basically my whole life okay well we say let me take a look at your your military treatment file and what's going to be in that military treatment file from the Battle of the Bulge probably not much because they were kind of busy fighting a battle so what can we do if we can't get medical evidence we can get statements from buddies they're called buddy statements and this is the VA has to consider a buddy statement if there's not competent medical evidence or there's not contradicting medical evidence and that can simply be hey my name is sergeant so-and-so I served with sergeant Snuffy during the Battle of the Bulge I was in the foxhole next to him and I saw that his feet were frozen or he didn't have boots and the VA has to consider that evidence and a lot of times with treatment that is giving during combat we're gonna find that initial treatment is given by a medic by a buddy and a lot of times there's not strong medical evidence that's going to show that or suggest that so we can overcome that with statements from buddies we can overcome that with doctors that have treated the veteran afterwards and say I've treated sergeant Snuffy for 30 years and he has complained about frostbite or numbness or tingling in his feet for the past thirty years also there was a big fire in 1970 out in Indianapolis where a lot of veterans records were burnt so any records after prior to 1974 the Army Air Force and some of the other branches have disappeared because of the fire that was in this warehouse however the VA has basically said if there is no records and basically we can prove that the record would have been involved in that fire during that time period there's a presumption you have to give the benefit of the doubt to the veteran so what you have to prove is you have to prove that there's a link between in-service occurrence of aggravation of a disease or injury and current disability so you have to actually be able to show that whatever you're complaining of was somehow connected to your service many times veterans will come in and it's this is especially true of World War 2 Korea and Vietnam veterans they did not file VA claims when they came home they will file the claims now they'll be coming in now and saying hey I have this condition but I never filed and a lot of times it's hard for us to go back and reconstruct their medical records because their medical records are either missing they're not there or these guys and gals did not go to the doctor they didn't complain about PTSD didn't exist really back then it was considered during World War Two and Vietnam Korea it was considered battle fatigue it wasn't considered PTSD a lot of guys and gals and soldiers during the time period were very ashamed and they didn't want the stigma of going to a psychiatrist or psychologist however we can overcome that sometimes with statements of wives family members doctors buddies to be able to say that he has been irritable his whole life he had he wakes up in the middle of the night with nightmares and the VA has to consider that evidence process of obtaining disability benefits the VA policy for determining whether a disability is service-connected and thats title 38 section 3.30 3 of the CFR and in your handout packet we gave you a little bit of what we're talking about tonight there's handouts there's some case law in there there's some VA regulations in there and some of the CFR is in there so it's a four-step adjudication process at the VA regional office most cases in this area here in upstate New York are usually processed out of the Houston Street office down in New York City however it can be processed in any of the regional offices general evidentiary requirements and issues and establish service-connected disability you have to have medical evidence a lot of times veterans will just come in and just say hey I'm a diabetic and that can work for certain veterans because there's a presumption of service connection for certain veterans and these are Vietnam veterans basically if they step foot into Vietnam some parts of Laos Cambodia there is a presumption that certain medical conditions were connected to Agent Orange and those are diabetes certain heart conditions certain skin conditions automatically it's a service-connected so if you know of any veterans that served in the Vietnam conflict and they have any type of heart issues or they're diabetic they basically just have to file the form and automatically the VA presumes present presumes that that is service-connected and they automatically get a disability rating and they'll get a monthly check for that the next big push is going to be for the service-connected presumptions that are occurring over in Iraq in Afghanistan we're seeing more and more guys and gals that are coming back due to either the anthrax vaccination to the sand there has been studies that have showing that the sand RAK is heavily contaminated with contamination from oil fires burn pits and other things so the next big issue that I think we're likely to see is a presumption for certain service-connected issues for Iraq and Afghanistan if you don't have one of those presumptions then we have to prove it through medical evidence and medical evidence basically has to show that it's more likely than not that the medical condition was caused by their service lay evidence is good and discussed in certain circumstances if there's no medical evidence you can get evidence from buddies buddies statements are very effective and I've seen them work quite often especially if there's no medical records I don't know if anyone saw but the VA several years back it was on 60 minutes had cart loads and cart loads of Records to be adjudicated and someone at the VA shredded them all while they were in the process of being adjudicated therefore there was a presumption in any of those cases that they had to give the benefit of the doubt to the veteran so some of you might come across those instances as well where there's no medical evidence or medical evidence has mysteriously disappeared whenever we deal with the VA we send everything either by fax so we can prove that they received it or certified because if you don't send it by certified mail or by fax the VA will lose it the agency has an obligation to provide a medical examination so what will happen is after the veteran comes in and you file the form online for medical for compensation what will happen is they'll get a call from the VA or a letter from the VA saying you need to come down to your your VA hospital and undergo a comp and ten physical basically what the comp and pen physical does is every ailment that the veteran has indicated on their form when they file for benefits there'll be a doctor at the VA that will evaluate that doctor that would that will evaluate the veteran for each one of those injuries or ailments that VA doctor will write a report and then send his recommendations to the claims adjudicator I normally tell veterans when you go to those physicals the first thing you want to do when you leave is you want to go down to the FOIA office and the basically what you want to do is you want to request your medical records you want to request everything that was done that day and you want to request anything that the doctor wrote because it's very important that you can see what the doctor recommended and did the doctor actually spend the time and that the doctor actually gives you all the medical tests because a lot of times we can overturn these cases because these comp and pen doctors a lot of them are contract doctors and not the best quality of doctors so we can a lot of times win cases when we can prove that they were not giving an adequate physical evidence of an in-service precipitating disease injury or event one of the things that you can basically be disqualified for service-connection is if the VA can show that you had this before you went in most of the time everyone that's went into the military before they went in they were given a physical and on that physical the majority of people that went into the military they were in the best shape of their life okay now the majority of people when they come out of the military they're usually pretty broke so what we normally see is most people that are going into military service do not indicate that they have had too many problems because if they do they're not going to be accepted I know when I went into the military I still remember the recruiter telling me the only answer you check node to is do you have vision in both eyes or yes to is you have vision of both eyes because basically anytime you say yes to any medical condition it's going to trigger an examination and is going to basically potentially disqualify you from military service so if you have a pre-existing medical condition if you go in and then on your entry exam you say yeah I fell out of a tree when I was six years old and broke my arm when you come out of the military 30 years later you have arthritis in that arm you're not going to be able to claim service connection for that hmm now there's exceptions to that you fall out of the tree when you're five years old and then you serve in World War two and you serve in the Battle of the Bulge and now all of a sudden you have a thright us because it may be frostbite or exposure to cold events you can probably show that your service has aggravated that condition and that's a way that we can sometimes get around a pre-existing medical there's a presumption of sound condition which basically means they presume that you were in sound condition evidence that condition existed prior to service are not aggravate advice ervice we already talked about that exception general review of assigning percentage evaluation for rating disabilities so what will happen after you get the comp and pen physical you will wait and wait and wait we probably about 18 months letter the veteran will get the decision from the VA that says we have made a decision in your case and they will then basically walk through each one of the ailments or disabilities that you're claiming and they will tell you whether or not service connection has been established and then they will talk about what rating they are assigning for each one of those conditions and what will happen is as they as they rate each one of those conditions they will talk about the percentage and they will talk about what you need in order to increase that percentage after you get that decision you have one year to file a notice of disagreement so the statute of limitations or this the the the deadline to file an appeal is one year what I normally recommend is what the letter will say is the letter will say if you disagree with this notify us in writing within one year and your next step is to go to the B VA which is the board of veterans appeals however I do not recommend that veterans go to the board of veterans Appeals right away there's an intermediary step where you can file for a decision review officer and what that means is basically you say I disagree with the findings and I request that a decision review officer review my case we just had a case in the last week actually here at the firm where a decision review officer reviewed a case unfortunately it took another two years after filing the appeal where the VA came back and said you know what we screwed up there's something called clear and unmistakable error and we screwed up and your 10% really should have been sixty to a hundred percent over the years so here is your check for one hundred and forty-eight thousand dollars so it is rare for the VA to come forward and basically say that yes there's a clear and unmistakable error but that's one way of proving that there there was a mistake made in a case and the important thing about that is is when you file your claim and this is why I tell anyone and anyone knows anyone in the military as soon as they get out is when they need to file their claim because the date of payment and the date of establishment of that claim goes back to the date that you file when you get out of the military you basically have a get-out-of-jail-free card for one year so you can file anytime after a year and it'll still go back to the date that you got out but if you wait 30 years to file your claim your date of claim your date of payment does not go back to whenever your your injury took place it goes back to the date that you filed so filing is an important date because as we discussed in order to establish service connection and all in order to establish a claim it has taken the VA approximately 18 months so what happens is when they finally make their decision and they finally say you were entitled to 60% that goes back to when you filed your claim so they get a lump the veteran will get a lump sum back to the date that they filed the claim and the way it works is each month depending on the rating the veteran gets a check in the mail and it ranges from a 40 percent rating is approximately with dependents is about $700 a month to a hundred percent what is 100 percent now three thousand thirty two hundred thirty two hundred dollars for a hundred percent reading however with these ratings come a lot of other benefits you can get dependent education benefits where children of servicemembers can basically go to school for free where the government will pay their tuition and there's all sorts of other benefits for the veteran as well this voc rehab benefits where the veteran can go back to school and this is an addition to the GI Bill this is not the GI Bill this is in addition to that so some veterans might not qualify for the GI Bill because their service was so many years ago but they can get voc rehab so what happens is after you get the decision from the VA and basically the VA says here's your ten percent rating best of luck to you okay well we're not going to agree with that we're gonna file a notice a disagreement and we're gonna request a decision review officer what will happen is that decision review officer has to be a neutral party that has not been involved in the claim they have to review why you disagree with it and it can be as simply as writing I disagree with the claim or I disagree with the rating and I request a decision review officer that's all the veteran has to write and then the decision review officer will review the claim review why the veteran believes it is wrong and then render another decision and that decision review officer can either increase the rating or deny it and say thank you for your appeal however your appeal is denied at that point now you have a year from the date of the decision review officer to appeal to the board of veterans appeals and after the board of veterans appeals if you disagree with that you can then go to the court of veterans appeals and then from there if you disagree with that rating you can go all the way up to the Federal Circuit Court of Appeals for the Federal Circuit in DC as you can imagine once you start getting into this level of Appeals we're talking years and it's not uncommon for veterans to come in and they will dump stacks of documents appeals wrink remands on your desk and basically say figure it out because it's been going on for so long the important thing though is when we talk about when to file we don't want to file a new claim and a lot of veterans do this they get so frustrated with it if the condition has gotten worse they try and file a new claim however what that could end up doing is if you don't appeal the decision and you just file a new claim your date of payment is going to go back to the date of filing the new claim and not back to the original D so that's an important tidbit if you are working with vet earns is that you ensure that they're appealing and they're appealing the original claim and they need to be careful with filing new claims and some veterans are gonna need to file new claims because they're gonna come in and they're gonna say hey I got 20% rating for whatever their condition is a broken bone or thry this limited range of motion and they're gonna say well now it's gotten a lot worse I can't twist I can't bend I can't do as much so yeah you can file a new claim on that and the VA can then increase it you'll have to have another examination by a VA doctor and the VA can review that and increase it now VA claims can go up and can go down the VA at any time can basically call a veteran in and say we want to examine you and see how your condition is doing so the VA rating can go down so that's why we sometimes tell veterans to be careful they come in and if they have a 60 or 70% disability rating and they want to try and get 80 or 100 percent disability rating sometimes we really need to review the documents and make sure that the VA is not going to decrease their rating if their condition has stabilized there is something called a hundred percent individual unemployability and what that does for veterans that are approximately 75 to 80 percent disabled if we can prove that they're not able to work because of their service-connected disability we can then file for a hundred percent rating based on unemployability and that will increase the rating to the veteran also give certain benefits to the dependent children and to the spouse what we're seeing more and more of coming back from Iraq and Afghanistan especially is PTSD and in this war we're seeing a lot more of that because many of these service members have deployed not once not twice a lot of them are now in their fourth fifth deployments and the rate of PTSD has skyrocketed based on the fact of multiple deployments the other thing we're seeing is veterans that are coming back from these wars that wouldn't have survived another war because of our body armor horrendous injuries of losses of both arms legs genitalia because of the body armor so the VA is really seeing it influx of veterans coming back from Iraq and Afghanistan and the surge continues so when working with veterans the first most important thing is if you want to do VA disability I encourage all lawyers in this room so take a few cases pro bono or to work with veterans is you do need to be certified by the VA general counsel you can't just take these cases however I believe that tonight's CLE will go as at least a step of the way of that requirement so that you can take these cases but you do need to be certified by the VA general counsel to take these cases if you do take them for pay the most important thing to remember is you cannot take them until the veteran has had at least one initial denial so the veteran can't come in to you and say hey I need help filing this if they do there's the the VFW does it disabled Americans vet of veterans do it the VA actually has liaisons that will do this and every county in New York has what's called a VA coordinator or a service coordinator that has to help veterans file these claims of course a lot of them are inundated with these veterans that are coming back and the numbers of claims coming in yeah of a denial it isn't well it's not a denial but you can appeal it so if you if you're claiming I mean you don't claim a hundred percent you basically just claim the injury the VA comes back and the VA will say service connection is granted and then it basically will say what the percentages however what we look at is we want to look at the regulations and there's a whole slew of that we'll say if the veteran has limited motion of less than such 30 percent if the veteran has limited motion of it's 40% so then that's really where the lawyer comes in and that's where you need to make the argument say oh he miss applied the regulation and a lot of times they do because remember these are a lot of times gs5 that are maybe going through these claims and they're processing 2030 claims a day they're gonna make mistakes and a lot of times they make glaring mistakes I would say most veterans that I've worked with do get an increase yeah a lot of them come in unrealistically they want a hundred percent and we can't get every veteran to a hundred percent but a lot of them do have errors does anyone have any questions on anything we put out tonight okay then I'm gonna touch a little bit on you Sarah for about five minutes since I have about five minutes left you Sarah is basically a Employment statute that says that you cannot deny a benefit of employment veterans and our firm this is one of the things that we specialize in is is you Sarah litigation we take cases nationwide and our firm probably files more USERRA cases than any firm in the country I was a former Army jag officer my partner Matt Tully is actually deployed as we speak to Afghanistan right now he's a lieutenant colonel in the National Guard what we're seeing is a lot of veterans when they come back National Guard Reserve and this applies to active duty come back and their jobs aren't there either they're told well you know while you were gone we filled your position or while we were gone guess what we cut your position well you Sarah is a federal law that protects veterans against that and it protects not only against loss of their job but anything that's considered or denial of a benefit of employment what happens is when veterans deploy there's an escalator principle and what happens is as the veteran deploys he steps on the escalator and he steps off where his peer would step off now so that means if the peer who stayed back got a raise and the veteran comes back three years later that veteran gets the raises if that peer was to get the promotion or the veteran would have got a promotion by staying that veteran gets the promotion however the escalator can also go down what do I mean by that corporation says hey we're having a terrible time in this economy we laid off a hundred people if the firm can show that we laid one of the people that would have been laid off was the veteran the escalator can go down and the veteran comes back and may not have job protection where we also see USERRA denials is in initial employment where employers will see on their resume National Guard or reserve and will deny them initial employment based on membership in the Guard or reserve USERRA even protects people that are not in the military you might have an employee that comes in and says hey I need off an hour on Tuesday because I'm going down to the MEP station to join the army you have to give that person to time off and you can't discriminate against them and say well you're joining the guard you're out and we see a lot of blatant violations and the violations are not just by local small companies they're by the federal government which is actually the biggest violator of USERRA which is kind of amazing and also by big corporations Walmart Target you name it we have cases against them all there are no no size applies to everyone the only people doesn't apply to our religious institutions Catholic Church doesn't apply to them and some of the alphabets FBI CIA and I think the transportation right TSA TSA doesn't apply to because of national security but other than that it's there's no threshold zone applies to everyone you serve as a federal law in New York State has its own protection as well under the New York State naval and militia law so if you're looking at one of these cases you also want to look to New York State law because New York State some of New York State's protections are actually greater than the federal government you don't have to pay someone while they deploy some firms make up the difference there's nothing that says you have to do that there's nothing that says that you have to continue them you do have to continue them on medical but you don't have to pay for it the person that deploys does have to pay for it pension contributions don't have to continue as if the veteran never left and that's really what USERRA protects against protects and states that the veteran is to be deemed as if they've never left and they come back they basically come back into the job as if they had never left meeting promotions and that's where we see a lot of the fighting in a lot of the lawsuits or with promotions pay issues and just general your job is gone or now you're now on the night shift and you used to work the day shift you Sarah cases sometimes are difficult to prosecute because it's not always easy to prove it however there are certain presumptions such as when a veteran deploys and they come back you can't fire them within the first is it 60 days or 90 days if they've been gone right so if a veteran comes back you can't even fire them unless it's for cause but you can't fire them and because it does protect them from termination there's also protections and userra that when a service member comes back they're entitled to take a certain number of days off before they even have to report back to work we see this a lot of times with performance evals that all of a sudden you had a stellar employee he gives she gives her notice and says hey I'm deploying and all of a sudden the performance dives so a lot of times we can prove that a lot of times we look into the performance evaluations that we'll say but for your absence in militant during military drills your performance was great so sometimes they're smoking guns in there that people don't even realize there are in their employment files USERRA has a five-year limit on it which means that you can you can't go over five years with each employer so you cannot have what we call a dual dual employment or dual careers so there are many exceptions or exemptions to USERRA which says that if you deploy for a contingency operation an emergency operation that is taken out of the five-year statutory limit so you Sarah if you do take you Sarah cases you Sarah cases do provide for attorney fees however it is in the discretion of the judge if Sarah provides for liquidated damages if you can prove that it was willful the violation and you Sarah also has equitable relief available to it if anyone has any questions on you Sarah I'll stick around afterwards because we are seeing tons of USERRA related cases and it's only going to continue as the service members start coming back from Afghanistan we saw the surge when they came back from Iraq but now that they're starting to come back from Afghanistan we're seeing it and also just the employment rates or unemployment so veterans we can see some of the discrimination so it's illegal to deny any veteran a benefit of employment so thank you for coming and if you have any questions I will stick around and enjoy the rest of your night you

Author Since: Mar 11, 2019

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