May 31, 2013
In a previous blog posting, we explained why a “win” at the Court of Appeals for Veterans Claims (CAVC) most often does not result in immediate award of benefits by the VA, but instead in a remand, i.e. the case being sent back to VA to be redone, sometimes with further development. Clients sometimes wonder why it is, then, that their lawyer who prosecuted the appeal at the court gets paid.
How is it that a lawyer would be paid for a “win” at the court but the client not see any money? Most lawyers who represent clients at the CAVC do so without charging a fee to the clients. This is possible because the lawyer – who is not a charity, after all, but must pay the rent and light bill like everyone else – will be paid, if successful on the appeal to the court, by the government under the Equal Access to Justice Act (EAJA). Note the emphasis: the lawyer gets paid only if successful, so she is still gambling, since she could spend a great deal of time and effort and still not get paid if she loses. That is why lawyers offer such representation only where they believe there are errors in the Board decision that the court will wish to correct. The money paid to lawyers under EAJA is not taken from the client in any way; indeed, if benefits are eventually awarded by VA and the veteran is represented by the lawyer under a contingent fee agreement, the lawyer must refund to the client a portion of the fee equal to the EAJA payment the lawyer received.
Here is how that works. VA regulations permit lawyers to represent veteran claimants at VA under contingent fee arrangements. This means that whether and how much the lawyer gets paid depends (is “contingent”) upon the amount of benefits awarded, specifically the past-due benefits accrued from the date of the claim up to the date of the decision awarding benefits. So if a veteran is granted a new or increased rating, VA computes the monthly payments as changed by the award and then adds up all those payments that would have been made from the date of the claim had the award been in effect all that time. That amount is paid in lump sum to the veteran, but with a maximum of 20% (depending on the client-attorney agreement) deducted and paid directly to the lawyer. This is how the lawyer gets paid for her work in getting the award for the client from VA. But the court has ruled that the work at the court, which was paid for by the government under EAJA, and the work at the VA is in some sense the “same work,” so if the contingent fee is more than the amount paid under EAJA, the lawyer is required to refund to her client the amount of the EAJA.
October 30, 2012
The Department of Veterans Affairs offers two major disability benefits programs: (1) service-connected disability compensation and (2) non-service connected disability pension. Both benefits are based on the disability of the veteran and the disability’s effect on employability. VA pension is a needs based program. To be eligible for pension, a veteran must have wartime service, low income, and be totally and permanent disabled. Because this benefit is for low income people who are totally and permanently disabled, VA will reduce VA pension dollar-for-dollar for “countable” income. Compensation is not based on need or income. Compensation is based on a disability being caused by or otherwise related to the period of military service.
Social Security Administration, offers two major benefit programs: (1) Social Security Disability (SSDI) and (2) Social Security Income (SSI).
Generally, veterans can receive both SSDI and VA Compensation Benefits concurrently. For pension purposes, however, VA will count income from almost all sources, including SSDI income (but not SSI) to determine income for pension purposes. See 38 C.F.R. § 3.261 (2012). This means that if a veteran is receiving VA pension benefits and he/she begins receiving SSDI benefits, VA will offset the amount received from Social Security from the pension payment.
November 04, 2011
VA Form 526 is used to initiate a new claim. Use this form if you wish to file a new claim for disability or pension benefits. VA Form 526b is also used to file claims for increased ratings or to reopen a previously denied claim. Be sure to follow the directions closely. Claims for VA benefits are initially made in writing to your VA Regional Office (“RO”). You can contact your local RO to obtain forms for filing your claim by calling 1-800-827-1000. After developing your case, the RO will send you a decision, called a “rating decision.”
The following information is provided as a general guideline. Providing the information listed below is not a guarantee that you will win your case, however, if VA doesn’t have this evidence, it is likely that your claim will be denied.
Service connection: In order to have the best chance of getting a claim for service connection granted, you should make sure VA has the following evidence: (1) medical evidence (in writing from a doctor) saying what your current disability is, (2) evidence (from yourself or your service records) showing that you had some sort of injury in service, or medical evidence that you contracted a disease or that your condition got permanently worse in service, and (3) evidence in writing from a doctor that the condition you now have began in service, or, if it began before service, that it was permanently aggravated during service.
If you are applying for service connection for post-traumatic stress disorder (PTSD), a veteran will now be able to establish the occurrence of an in-service stressor through his or her own testimony, provided that: (1) the Veteran is diagnosed with PTSD; (2) a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted confirms that the claimed stressor is adequate to support a PTSD diagnosis; (3) the Veteran’s symptoms are related to the claimed stressor; and (4) the claimed stressor is consistent with the places, types, and circumstances of the Veteran’s service and the record provides no clear and convincing evidence to the contrary.
Reopening a claim: If you have made a claim for service connection for a disability and the claim was denied, but not appealed, the law requires that you “reopen” your claim before VA will consider it again. In order to reopen the claim, you must first submit “new and material” evidence. Basically, this means you must look at the reasons the VA denied the claim the first time, and submit some new evidence that fixes the problem. For example, if your claim was denied the first time because you had no evidence that your current condition was related to service, you will need to submit some evidence that does link your condition to service.
Increased rating: If your claim is for entitlement to an increased rating, you can learn what criteria will be used to assign your rating, by looking at 38 C.F.R. (Code of Federal Regulations) Part 4. (This should be available at your local library or courthouse). If you look at a rating decision, there will be a four-digit code listed next to each condition. These codes, called “Diagnostic Codes” are listed in the CFR. You can see there what you need to show in order to get a higher rating for your condition. The best thing to do to prove your case is to document (preferably through medical evidence) that you have the symptoms listed for the higher rating.
Total disability due to individual unemployability: To receive unemployment benefits from VA, you must have evidence that your service-connected disabilities, by themselves, make it so that you can’t work or that even if you can work a bit, you can’t do so in such a way as to make income to meet the poverty line. The best way to document this is to have your doctor explain that you can’t work as a result of your service-connected disabilities by themselves. Just showing that you can’t work or that you can’t find work is not enough to receive this benefit.
Brenda Keener is a paralegal with Goodman Allen Donnelly.
October 07, 2011
When a veteran is not satisfied with the decision reached by the Regional Office (RO), he/she must file a Notice of Disagreement (NOD). The RO then offers two options for appeal, review by a Decision Review Officer (DRO) or the traditional appeal process. The RO will issue a letter outlining these two options. You have 60 days from the date of the letter to respond with your selection. If you do not respond, your appeal will be sent through the traditional process. In either process, the reviewer can (1) award a full grant of benefits, (2) award a partial grant of benefits, or (3) confirm the original RO decision.
Traditional Appeals Process
This process involves a review of the claims file and any additional information that is submitted. The reviewer can hold a formal hearing with the veteran to gather additional evidence. However, he is only allowed to change the original decision in two instances, (1) new evidence has been submitted, or (2) the original decision was based on clear and unmistakable error. This means the original reviewer made a mistake. The decision can also be changed based on a difference of opinion, BUT the new decision must be approved by the Central Office.
The RO will then issue a Statement of the Case (SOC) explaining the decision. In order to continue to appeal to the Board of Veterans Appeals, you must return the enclosed Form 9 with 60 days of the mailing of the SOC, or within one year of the original decision, whichever is later.
DRO Review Process
This process also involves a review of the entire claims file and any new information that is submitted; however, the DRO considers the evidence without deference to the original decision made by the RO.
DROs can hold formal hearings, just like in the traditional review process, but they are also allowed to hold informal conferences with the veteran or his representative to discuss the appeal.
If the DRO does not award a full grant of benefits, a Statement of the Case (SOC) will be issued and the appeal process will continue in the same way as the traditional appeal process explained above.
Why Should You Choose a DRO Review?
1. DROs are senior level RO employees; therefore, they are more experienced than the average VA decision makers that denied your original claim.
2. DROs have broader powers than regular reviewers. This includes the power to change the original decision without approval from the Central Office.
3. DROs have the ability to hold informal conferences with veterans to discuss the facts or evidence.
4. The DRO process takes, on average, a month longer than the traditional appeals process. This is the time period between when you file a NOD and when you receive a SOC. However, a study by the U.S. Government Accountability Office (GAO), found that you are more likely to receive at least partial benefits if you choose the DRO process instead of the traditional appeals process.
5. According to the same report, the average wait time for decision by the Board of Veterans Appeals is more than 1,000 days from the time a NOD is filed. The average wait time for a decision by a DRO is only 266 days from the time the NOD is filed. Therefore, if you receive a partial grant from the DRO, you will begin receiving your benefits much faster than if you appealed directly to the Board.
6. If your claim is not granted by the DRO, you can still continue your appeal to the Board without having to start the process over again.
Overall, the DRO review process gives veterans an additional chance for a favorable decision, is more likely to result in a grant of benefits early on, provides an opportunity to speak directly with the individual making the decision, and does not forfeit the right to appeal to the Board of Veterans Appeals. There is no real downside to choosing this option, and it may end up being more beneficial.
You can find the complete report by the GAO at:
Krystle D. Waldron, J.D. is a May 2011 graduate of William and Mary Law School.
August 17, 2011
Why is VA so slow to process claims?
VA is a huge government bureaucracy. All bureaucracies, whether government or corporate, are slow, inefficient, subject to channeled thinking. They are inherently cautious and have many interconnected parts, and actions require multiple reviews and sign-offs. Political influences on, and scrutiny of, government bureaucracies increase the natural cautiousness.
Understaffed, undertrained, overworked, overwhelmed. VA handles hundreds of thousands of claims. Many have merit but not all do. Some people, seeing a federal fund of money, regard VA benefits as a possible source of easy money. With responsibility for the use of taxpayer money, VA must sort through all the claims to separate the bogus from the legitimate. The agency is challenged to find, train, and retain enough qualified employees to deal with this burden of work.
Conflicting incentives. Sometimes the very measures taken by VA to speed processing of claims result in losing ground. For example, when VA creates incentives for clearance of claims faster, the easiest way to deal with a claim quickly is to deny it, often without doing all the proper development. This results in appeals and redoing the claims, sometimes over and over.
Creeping bias. Most VA employees, however effective or ineffective, are sincerely trying to do their jobs properly. Dealing with such a vast number of claims, however, sometimes creates a sense of skepticism on the part of reviewers. This suspicion that most claims are without merit can result in denial because of a tendency to favor evidence adverse to the claim or insist upon corroboration of evidence that should not require it.
What can be done about it?
The short answer is that there is no cure-all; to a certain degree the system is what Congress has established, limited by realities of claim volumes and the labor market. But there are some things that can help avoid undue delay.
Support claims. If you are preparing to file a claim, collect or think about the necessary evidence to prove it. Claims for service connection require showing a current disability that is related to an event of injury or disease manifestation in service. Unless the disability is obvious, such as an amputation or scar, you will need medical records to demonstrate it. VA will request necessary records if you identify sources, but as the patient you can often save time by requesting them yourself. If your injury or illness in service is reflected in military records, that will suffice; if not, you can describe it in a statement but VA will usually want corroboration, so you should solicit statements from witnesses – fellow soldiers, family members, co-workers who are familiar with the events. Finally, unless you have documented symptoms that have continued since service, you will need to establish an evidentiary connection between the in-service event and your disability. This usually requires a medical opinion, which VA may or may not obtain on its own; again, time can be saved if you get an opinion yourself.
Simplify. Having multiple claims also causes delay, especially if they are not proceeding simultaneously. VA cannot rub its stomach and pat its head at the same time. Claims at different stages require attention by different personnel in VA, and the claims file can only be in one place at a time.
Heed notices. If your claim is denied, pay close attention to the reasons given in the Rating Decision or Statement of the Case and consider how to address them. You may need to obtain additional evidence on the elements discussed above.
Be insistent but polite. Bureaucrats are human beings (strange but true!). Like any human, a government employee responds better to courtesy and respect than to threats or anger. Dealing with VA is often infuriating, but losing your cool accomplishes nothing because, realistically, VA employees have little pressure on them to handle any particular claim promptly. But it is important to keep steady pressure on VA. Call or write VA about pending action at regular but reasonable intervals, about every 30-60 days. Writing to your congressional representative cannot force any particular decision by VA but it can sometimes help focus some attention on a file if it has been languishing without action for a long time. Do not resubmit evidence, as this simply bulks up the claims file and causes delay.
Last resort. There is one mechanism to compel attention and possibly action by VA if delay becomes extraordinary. It is possible to petition the Veterans Court for an extraordinary writ of mandamus, an order directing the agency to do something. It is called extraordinary because the court regards it as an extreme measure, to be done only in the most egregious cases. The court very seldom actually issues a writ; sometimes just filing the petition, however, prompts the agency to get something moving again.
We would be happy to answer questions about any of this information.
July 19, 2011
Filing a claim for VA benefits can be a daunting task. It often requires the veteran to fill out and submit many forms or documents to the VA. Gathering this information can be very time consuming and in some cases costly. Therefore you want to ensure that the documents you sent are received at the VA and added to your claims file eliminating the need to resubmit if lost or misplaced.
Keeping track of what documents or forms that are sent to the VA can be challenging yet very important. The VA is a large agency and the possibility of documents being lost or misplaced is great. Here are few things to remember when submitting anything to the VA:
1. Always maintain a copy of what you are sending to the VA for yourself.
2. Do not send the original document unless otherwise instructed by the VA to do so.
3. If possible, send documents to the VA by certified mail requiring a signature confirming receipt.
4. Make sure the documents you send have your name and claims file number clearly listed on the document.
5. If you received a letter from the VA requesting that you send a document(s) pay close attention to what address you are instructed to send the document to.
6. Make a phone call to the VA to confirm receipt of the documents you sent.
7. If you are represented by an Attorney or Service Organization, before you submit anything to the VA discuss with them best practices when mailing documents to the VA.
Following these simple tips may alleviate the need to resend documents and diminish the possibility of your documents being lost or misplaced.
To locate VA forms or find out more information regarding the VA claims process, visit the VA’s website at www.va.gov.
November 10, 2010
Wrestling benefits out of VA is usually a battle of attrition. While a few claims sail efficiently through the system, this is by far the exception. Most claims are a matter of wearing VA down through slow development of the claim and repeated challenge of decisions and correction of errors. The nature of this system moves many veteran claimants to approach the claims process with a shotgun, or perhaps blanket artillery fire, repeatedly throwing everything they have into the fray in the hope that something will score a hit. But is this the best approach?
Yes and no. VA is notorious for losing or ignoring evidence, so tenacity and repetitive attacks are indispensable. But there are distinct drawbacks to this approach that may not be appreciated by claimants, so some thoughts about strategy may be helpful.
One thing is obvious if you think about it: a huge file full of paper is harder to find things in than a smaller file. When a claims file is full of dozens of submissions of the same items, any single item becomes harder to find. There is also a tendency to skip over things you’ve seen frequently, so if something new is included among a pile of repetitious stuff, it is apt to be missed.
Another consideration is that VA will do nothing on a claim without the claims file. The processing of claims, however, requires the file to be shifted around to various sections or even different offices. This causes delays when there are multiple claims submitted: if a shoulder claim necessitates a VA examination, while the file is at the VAMC it is not available to anyone to work on another claim. Likewise, if one claim is on appeal at the Board of Veterans’ Appeals or at the Court of Appeals for Veterans Claims, work is essentially frozen on other claims until the file can be released back to the regional office.
What is the best way to minimize these problems? Try to be as organized in your submissions as possible. Remember the essentials of proof of the claim: if for service connection, you will need evidence of a current disability, of events or symptoms in service, and of a connection between them; if for an increase in rating, you will need evidence of your current medical condition. Try to muster and submit these items together. If you have to make repeated submissions, do not resubmit materials you’ve already submitted (unless you have reason to think VA has lost them); instead, submit any new material and call attention to previously submitted items by date and subject in your cover letter. Always keep copies of everything you submit to VA and keep track of the date you submitted it.
If you have multiple disabilities, it is best if you can submit claims for them all at once. If that is impossible, as when a condition develops or worsens later, submit the most organized and complete set of evidence that you can. Just remember that every new claim requires development, which in turn requires the claim file to be used by one agency group and therefore be unavailable to other groups. You don’t want to delay submitting a meritorious claim, as that could affect your effective date for benefits, but it may be best to prioritize your claims, pursuing first the ones most likely to succeed (strongest connection to service, worst medical condition). It is not effective to throw many claims at VA in the hope that something will stick if some of the claims are very weak.
September 23, 2010
A question we often hear from our clients regards what happens to a claim that has not yet been decided or is still pending at his or her death. Fortunately, Congress recently changed the rules regarding how the Department of Veterans Affairs (VA) handles such claims. The rules are less clear for claims that are on appeal to the U.S. Court of Appeals for Veterans Claims.
Congress now allows for survivors of the person filing a claim (known as a “claimant”) to pick up the claim where the claimant left it upon his or her death if the claim is pending before VA at either the VA regional office (or Agency of Original Jurisdiction) or the Board of Veterans’ Appeals. This process is known as “substitution.” In effect, the survivor is permitted to continue pursuing the original claim at exactly the same point where it was upon the claimant’s death, and this allows VA to pay to the survivor any benefits that otherwise would have been paid to the original claimant. The law permitting substitution is at 38 U.S.C. § 5121A.
In order for VA to allow substitution, there are some basic requirements that must be met. First, a survivor must ask VA to be substituted for the deceased claimant within one year of death. If this deadline is missed, substitution will not be permitted. Second, the survivor must meet certain criteria to be deemed eligible. Generally, the survivor must be the deceased claimant’s legal spouse, a child, or a dependent parent. The full list of eligible persons is available at 38 U.S.C. § 5121(a).
The Court of Appeals for Veterans Claims has now decided that a survivor may be substituted in a case that is pending at the Court at the time of the claimant’s death.
July 14, 2010
The proposed new PTSD regulations are now in effect.
VA’s fact sheet about the changes can be found at https://www.va.gov/
Keep in mind that this does not entirely remove the requirement that PTSD stressors be corroborated – only in specified circumstances, involving situations of hostile military or terrorist activity. The asserted stressor must be consistent with the conditions of the veteran’s service. The new rules also require that a VA examiner give the opinion that the assereted stressor would be sufficient to cause PTSD.
PROPOSED REGULATIONS AUGUST 2009
VA has proposed a change to the PTSD regulations that will eliminate the requirement that a stressor be corroborated if it arises out of “fear of hostile military or terrorist activity.” There will also be a requirement that a VA psychiatrist or psychologist give an opinion that the stressor is adequate to support a diagnosis of PTSD and that the veteran’s symptoms are related to that claimed stressor.
If these conditions are met, the veteran will not have to provide additional evidence to show that the stressor occurred, as long as the stressor is consistent with the places, types and circumstances of the veteran’s service, and as long as there is not clear and convincing evidence that the stressor did not take place.
The PTSD regulations already provided that no additional evidence was necessary if it was a combat-related stressor and the veteran served in combat.
What does this mean in practical effect? If you served in an area where there was “hostile military or terrorist activity” taking place, you no longer have to prove that you were “in combat.” Many times, the combat requirement was used to require additional evidence if the veteran served in a combat area, such as Vietnam or Iraq, but did not have a “combat” MOS. If your official MOS was, let’s say, “aircraft mechanic,” it could be very difficult to convince VA that your stressors were combat related and that you served in combat.
Under the proposed new regulation, VA is now recognizing that other stressors, such as “constant vigilance against unexpected attack, the absence of a defined front line, the difficulty of distinguishing enemy combatants from civilians, [and] the ubiquity of improvised explosive device” are characteristic of “deployment to a war zone,” regardless of whether you were directly serving in a combat role.
It’s important to understand what this doesn’t change – additional evidence will still be required to show that a stressor occurred, if it didn’t take place in a war zone and was not related to “fear of hostile military or terrorist activity.”
November 16, 2009
In a previous blog posting I discussed evidence in veterans cases, including a feature unique to this system, the rule that if evidence is approximately balanced on any given point, the veteran claimant is supposed to be given the benefit of the doubt. In actual practice this favorable rule is not applied because VA determines that the evidence is not balanced. This posting will discuss how that occurs and some hints about developing your evidence to avoid some of the most common reasons for losing claims.
How VA gets around the benefit-of-the-doubt rule.
The equipoise standard in veterans cases seems like a highly favorable factor: all one has to do to win is show it’s 50-50. The rub comes in the fact that weighing evidence has a large component of subjective judgment, and by finding some items of evidence more believable than others, VA can conclude that the evidence is not balanced but is one-sided against the claim. In the example in the previous posting about a soldier fall and the immediate treatment records not including any mention of a head injury, the decision-maker might choose to believe that triage doctors are very thorough in noting any symptoms complained of, so the omission of any mention of a head injury would weigh very heavily in this decision-maker’s evaluation of the evidence. To a certain degree the decision-maker is permitted to make these evaluations and the Veterans Court will not disturb the agency’s conclusions if they are plausible.
On the other hand, VA quite often brings completely unwarranted assumptions into its weighing of evidence, such as the notion that if there are no complaints of symptoms or treatment for a condition in medical records, the veteran had no such symptoms or condition; the notion is based on the assumption that all patients always consult a doctor for every condition or complaint they have. It’s not true and it’s not in the evidence, but VA will assume it anyway. These sorts of erroneous evaluations of evidence are often the basis for appeal.
Presenting strong evidence to support a claim is vital to its success. The best way to accomplish this is, first, to know the key facts necessary to prove a claim, what lawyers call “elements.” The three elements of a service-connection claim are (1) an incident in service, i.e. an injury or first manifestation of a medical condition, (2) a current recognized disability, and (3) a causal relation between (1) and (2), i.e. the disability is the same condition or related to the incident in service in some way.
VA is required to send notice to all claimants of what must be proven; it often obscures this information in a blizzard of legal provisions or misleading statements about the duty to assist, but somewhere in the notice letter sent after the claim is filed will usually be a listing of the elements. Ask yourself if you have submitted or can obtain convincing information on each of those elements. (This inquiry can also serve to prompt the threshold question central to any claim: is there a provable entitlement to the benefit sought? VA does not award benefits based on sympathy or veteran hardship; it does not care legally whether you are in financial straits. It can only award based on evidence.)
Especially bear in mind that, whether your claim is for service connection or for increase of rating, it requires medical expert evidence to establish one of the key facts: you must show causal relation with an incident in service for a service connection claim, and you must show degree of severity of the condition in an increased rating claim. If you don’t have such evidence, you need to get it, either through treating physicians or perhaps by pressing VA to get a medical opinion. Having evidence that supports each of the necessary elements is the most important factor in developing a successful claim.
What is good evidence? Anything pertinent to an issue of the claim, that is, one of the crucial facts that must be proven, is relevant evidence and must be considered, but certain qualities affect the weight given to evidence. A few hints:
Direct personal knowledge. Hearsay (something somebody else told you), which is a concern in other types of legal cases, is not strictly taboo in veterans cases, but evidence is unquestionably stronger if it comes from someone with direct personal knowledge of the fact in question. A veteran can, for example, say that he received a certain diagnosis for a condition, but much stronger, more convincing evidence would be the actual medical record in which the diagnosis was stated or a statement from the doctor who made it.
Expert versus lay testimony. Related to the last point is that those to provide evidence must be “competent” to do so. This is a legal term that basically means, possessed of the knowledge, training or experience to reliably say what is being said. Thus, a family member could be perfectly competent to say that a veteran had a limp when she returned from service, but unless that family member is a doctor, he is not competent to say that the veteran had a hip dislocation; the latter requires medical training and judgment. Don’t overlook, though, the capability of lay persons to competently attest to what they can clearly see or perceive.
Corroboration. Although it is supposed to be neutral, VA in fact views anything a claimant says as suspect, because there is always the possibility that the claimant is fabricating or exaggerating something in order to get money from the government. This factor can be offset through corroboration: records or other witnesses who can verify what the claimant is saying. Even a writing made by a claimant can serve to corroborate, if the record was made contemporaneously with the event, e.g. jotting down immediately afterward what happened during a medical exam or an accident. If reliance must be placed solely on a claimant’s recollection, it can be strengthened through detail that increases the plausibility of the story. Needless to say, any hint of falsehood or inaccuracy seriously undermines the value of evidence.
By paying careful attention to whether you have evidence on each of the key facts, and observing the preceding tips for making that evidence as persuasive as possible, you can significantly improve your chances of VA making a favorable decision initially, but even if it doesn’t, you will have vastly improved your chances of a successful appeal and eventual favorable decision.