Federal Circuit holds Veterans Cannot Obtain Service Connection for Chronic Diseases that are Not Listed as Chronic by Statute

Last week, the Federal Circuit, in the case of Walker v. Shinseki, 2011-7184, affirmed the denial of Mr. Walker’s claim for bilateral hearing loss, despite Record evidence demonstrating it began in service and lasted throughout his life, because it is not specifically listed in 38 CFR 3.309(b) as a chronic disease. Mr. Walker served in the United States Army Airforce from March 1943 to November 1945 as a Four engine air pilot. The evidence in the record consisted of lay testimony because his service records had been destroyed in a fire. The lay testimony demonstrated that Mr. Walker’s hearing loss began in service, due to aircraft noise, and continued throughout his life. His claim for service connection was denied by the BVA and affirmed at the US Court of Appeals for Veteran’s Claims. Pending that appeal, Mr. Walker passed away and his son, James Walker, was substituted in the action. The Federal Circuit affirmed finding that although Mr. Walker had been diagnosed with bilateral hearing loss, and was unable to prove that it occurred in service due to the destruction of his service records, that he could not obtain service connection for this chronic condition because it was not specifically enumerated by Congress as a “chronic condition” pursuant to 38 CFR 3.309(b). This statute lists 41 specific chronic diseases, bilateral hearing loss not being one of them. This decision creates a huge setback for Veterans suffering from chronic diseases due to an in-service cause insofar as they will not be able to obtain service connection if their disease is not listed as a “chronic disease” pursuant to the statute. To Read Entire Case, Click Here

Dear Friends and Clients,

In furtherance of our firm’s culture of commitment to always act with compassion, concern and commitment to our clients, community and colleagues, we have been taking precautions to ensure that we are still fulfilling our ethical and moral obligations while prioritizing health, wellness and safety of all we can.

As you know, the COVID-19 pandemic has introduced changes to many lives and businesses in our communities, and around the world. We, much like our neighbors and friends, have been taking precautions to ensure that we are still fulfilling our ethical and moral obligation to our clients, while also prioritizing the health, wellness and safety of our employees.

Until further notice, our offices will be closed to the public to encourage social distancing and to help prevent the spread of COVID-19. Our team is still hard at work, many from home, and you may still call, email, live chat or video conference us if you or a loved one is seeking legal assistance. As the first law firm to offer our clients secure online access to their case file more than a decade ago, we have always been believers in using technology to make life easier and information more accessible. In these present times it has been a smooth transition for us to continue to offer our clients the same seamless and thorough service that you deserve and are accustomed to.

This pandemic is unlike anything any of us have faced in our lifetimes, and while we can continue to emotionally support one another through it all, staying home and keeping your distance is vital to the health and wellness of our communities. It does not feel good to break routines, cancel events and retreat from our normal, day-to-day socializing, but let us remember that, in times of strife, prior generations were asked to go to war and we are simply being asked to stay home. Your isolation equals more lives saved, and more time for medical providers to prepare for the treatment of patients battling COVID-19.

When the dust settles, we will join together with a greater appreciation for our lives, local businesses, loved ones and health. Until then, we will continue to offer guidance from a safe distance.

Very truly yours,

Andrew G. Finkelstein and the staff of Finkelstein & Partners, LLP