Mental Retardation And/or Developmental Delay Rvn Vet Needs Help

[tssnave]

Need ideas - with supporting citations to M21-1MR, CFR, and court cases - concerning Presumption of Soundness for Duty or any other avenue to help a boots in country, non combatant, honorably discharged, unmarried RVN vet who is mentally retarded and/or developmentally delayed get access to VA healthcare. He has no other mental illness dx or physical disability dx. He hasn’t worked for years due to his mental illness and he is not currently using any VA services.

- I know he can get access to VA healthcare based on low income but he’d be a Category 8 vet so we all know he’d go to the back of the line.

- He should be eligible for a VA pension but hasn’t applied.

- However, if he’s eligible, disability would be the best way to go but other than a possible argument based on the Presumption of Soundness I don’t know of an avenue to use and I doubt, without another mental illness dx, that he could successfully argue Soundness (even though he was able to serve out his hitch).

1. Could he, with a strong IMO, mount a successful argument that his time in the military aggravated his mental retardation?

2. Are there any court cases where a vet has been successful in getting disability when mental retardation was present but not noted in his SMRs and is still present without any other mental illness dx?

3. Any other avenue of approach to try in this case?

Thanks,

TS Snave

[john999]

When you say mentally retarded do you mean someone with a mental score lower than the standard? I know that toward the end of the war the military would take anyone with a pulse. Mental retardation is not a mental disease. It is not compensable unless it is caused by some event in service like a brain injury. Retardation is like a personality disorder in the eyes of the military and VA.

[tssnave]

John,

Yes, clinical mental retardation.

You are correct that retardation and pd are covered under the same reg and not compensable.

Thanks,

TS

[sharon]

§ 4.127 Mental retardation and personality disorders.

Mental retardation and personality disorders are not diseases or injuries for compensation purposes, and, except as provided in §3.310(a) of this chapter, disability resulting from them may not be service-connected. However, disability resulting from a mental disorder that is superimposed upon mental retardation or a personality disorder may be service-connected.

§3.310 Disabilities that are proximately due to, or aggravated by, service-connected disease or injury.

(a) General. Except as provided in §3.300©, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.

Now if he has another mental disorder such as depression, anxiety disorder, panic disorder, PTSD etc., he can file a claim. Just a matter of have him diagnosed and a nexus.

[carlie]

- I know he can get access to VA healthcare based on low income but he'd be a Category 8 vet so we all know he'd go to the back of the line.

VA doesn't pay much attention to what Category we are in.

- He should be eligible for a VA pension but hasn't applied.

Apply for that and SSI at the same time.

SSI will probably be granted first.

carlie

[john999]

TS

How the heck did this vet get into the military being retarded. I know the Army was desparate for soldiers during Vietnam, but that is going over the line. They did take many criminals. The deal was either jail or the army. I do know that no one failed the PT test or the rifle range when I was in Basic. If someone could not shoot straight the Drill Sarge would take that person out to the range by himself and he would pass. They let us grade ourselves on the M-16 during the one week preparation for RVN at Ft Riley, KS. It was winter and we lay in the snow shooting the M-16. Great traing for the jungle.

[tagandbag]

John, I remember in bootcamp, especially one guy. who didn't know his right from left and other simple commands, while in formation or marching. He was always pissing off the DI. When you talked to this troop he had this vacant look in his eyes. He couldn't read or talk very well. If I had to guess his IQ was maybe 50-60. He made it through boot camp. It was sad to see the military drafting someone like this, then putting a weapon in his hands and sending him to VN to be killed or get somebody else killed. I know if I was on patrol and had him in my unit, I would be very concerned. Only reason I wasn't sent into the bush, was because I am color blind. Couldn't distinguish a tree from a gook at 50 yards. It is strange how they saw my eyes as a handicap and see someone who is low IQed and iliterate not handicaped.

t&b