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Disability - When the initial decision finds no "nexus"
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Jim Strickland is a Vietnam era Army veteran and nationally recognized expert on VA disability benefits and a member of the Stateside Legal Website Advisory Board. Jim's Mailbag, is a regular column where veterans, servicemembers, and family members can ask Jim their questions about VA and Social Security disability benefits.
You can browse all of these Q&As here, and search the Jim's Mailbag archives for helpful answers.
If Jim hasn't already addressed the questions you have, you can submit your own question.
I'd like to ask you about...TDIU and Activities of Daily Living, Charges against Purple Heart Disabled Marine, Total hip replacement and complications, Agent Orange Presumptive Conditions, Prostate Cancer "cured" but now recurring, Ischemic Heart Disease and new stents implanted, Applied for disability via his doctor...and many many more.
Vets rapidly losing 2nd Amendment gun rights
Behind the scenes, US military veterans are afraid they are being specifically targeted and are quickly losing their 2nd Amendment rights. According to one group, in over 150,000 instances, they already have.
Has the VA Deprived You of Your Second Amendment Rights? NRA Wants to Hear From You!
VA has been reporting to NICS the identities of its beneficiaries who have been assigned a fiduciary to manage their benefits. VA claims that such determinations constitute an “adjudication of mental defectiveness” under federal law, thereby prohibiting the
beneficiary from acquiring or possessing firearms.
Have a Medical Marijuana License? Want to purchase a weapon?
Nope. You can have one or the other, not both.
A federal prohibition would exist for any person who:
* Has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year.
* A fugitive from justice.
* An unlawful user of or addicted to any controlled substance.
* Has been adjudicated as a mental defective or committed to a mental institution.
* An alien illegally or unlawfully in the United States or who has been admitted to the United States under a non-immigrant visa.
* Has been discharged from the Armed Forces under dishonorable conditions.
* Having been a citizen of the United States, has renounced U.S. citizenship.
* Subject to a court order that restrains the person from harassing, stalking, or threatening an intimate partner or child of such intimate partner.
* Has been convicted in any court of a misdemeanor crime of domestic violence.
* Under indictment for a crime punishable by imprisonment for a term exceeding one year.
In addition to federally prohibitive criteria, the NICS must delay or deny firearm transfers based on applicable state law.
A delayed transaction will be purged from the NICS within 88 days from creation. The NICS Section recommends that you wait 30 days from the date initiating the check prior to filing an appeal on a delay to give the NICS Section’s staff time to
complete the initial transaction.
If your original background check is completed, the Federal Firearm Licensee will be notified with a final status.
Reasons NICS Background Checks are Denied or Delayed
A Denied message from the NICS indicates the subject of a NICS background check has been matched with a similar name and similar descriptive information of a record containing a state or federal prohibition.
A Delayed message from the NICS indicates the subject of a NICS background check has been matched with a similar name and similar descriptive information associated with a record containing a potential state or federal firearm prohibition.
The NICS Section must obtain additional information before making a final determination of a Proceed or Denied for the firearm transfer.
The NICS Section is afforded three business days in which to conduct this research. If the NICS Section is unable to provide either a Proceed or Denied response to the Federal Firearms Licensee within three business days, the Brady Handgun Violence Prevention Act of 1993 does not prohibit the Federal Firearms Licensee, or FFL, from transferring the firearm; however, the FFL is not required to do so.
Fiduciary Appointments & Gun Laws
Have you been notified that VA will appoint a fiduciary to manage your financial affairs?
Were you told you would not be allowed to purchase or own firearms?
Read the authority they use:
Mental Illness Prohibition (NICS Improvement Act)
Q: Federal law prohibits people who are dangerously mentally ill from purchasing or possessing a gun. Does the NICS Act change who is covered by this prohibition?
A: No. The NICS Act does not change the prohibition enacted in 1968 that bars people who are dangerously mentally ill from purchasing or possessing a gun. Under federal law, people may not buy or possess a gun if they are “adjudicated as a mental
defective” or “committed to any mental institution.” ATF regulations define “adjudicated as a mental defective” as a: Determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease:
(1) Is a danger to himself or others; or
(2) Lacks the mental capacity to contract or manage his own affairs.
These regulations have not been changed by the NICS Act. Note that merely seeking or receiving treatment for mental illness is not sufficient to bring someone within this prohibited class.
The NICS Act does provide that persons who are entered into NICS because of this mental illness prohibition may seek “relief from disabilities” by petitioning that their names be removed from NICS if they no longer suffer from the mental health condition that originally barred them from buying or possessing guns.
Roger Hale, Veterans Law Attorney
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