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Veterans Benefit Claims

New judges for the Court of Appeals for Veterans Claims

On May 24, 2012, the Senate confirmed two new judges for the Court of Appeals for Veterans Claims. The Court has three vacancies and the addition of two new judges to fill two of those vacancies will be a welcome development.

The two new judges are Margaret Bartley and Coral Wong Pietsch.

Judge Bartley was previously senior staff attorney at the National Veterans Legal Services Program (NVLSP) and also Director of Outreach and Education for the
Veterans Consortium Pro Bono Program, where she served since 2005. She also served as Editor of The Veterans Advocate® where she had previously worked as Assistant Editor and contributing writer. She represented veterans and their dependents and survivors before the CAVC and the Board of Veterans’ Appeals from 1995. Following law school, she served as a judicial law clerk for the Honorable Jonathan R.Steinberg, formerly of the CAVC. She holds a B.A. from Pennsylvania State University and a J.D. from American University Washington College of Law.

Judge Pietsch retired from the Army in 2007 as a brigadier general after having served inthe Judge Advocate General Corps since 1974. Since her retirement, she has been living in Hawaii, where she has worked as a civilian attorney for the Army. She has also served on the Hawaii Civil Rights Commission. She was the first woman general in the 228-year history of the Army’s Judge Advocate General’s Corps and the first Asian-American woman to hold the rank of brigadier general in the Army, promoted to brigadier general while a member of the U.S. Army Reserve. She holds a B.A. from the College of St. Teresa, an M.A. from Marquette University, and a J.D. from the Catholic University of America.

Filing a New Claim with VA

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.

Tips – When mailing documents to the VA

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.

PRECISION FIRE VS. THE SHOTGUN: Presenting claims to VA

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.

What Happens to My Claim if I Die Before It is Granted?

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.

VA to reopen Gulf War veterans’ files

Many veterans who served in Operations Desert Shield and Desert Storm are suffering from a range of physical disabilities, chronic ailments, and unexplained illnesses which may be due to an “undiagnosed illness.” Thousands of veterans who served in the Gulf War have come down with a pattern of symptoms that include rashes, joint and muscle pain, sleep issues, and gastrointestinal problems. However the cause of these problems remains unclear.

What is clear is that many Gulf War veterans are suffering from very real physical problems, and they are concerned along with their families about the long and short term consequences of these health problems. Many of these veterans suffering from what’s commonly called “Gulf War illness” have turned to the Department of Veterans Affairs (“VA”) for assistance. Congress has recognized, however, that “many ill Gulf veterans report having been told when they sought medical treatment that their ailments were ‘all in their heads.’” Report of the Special Investigation Unit of Gulf War Illness, 105th Congress. See https://www1.va.gov/rac-gwvi/docs/USSenate_ReportoftheSIUonGulfWarIllnesses_ReportNo105-39PartI_1998.pdf

The Washington Post has recently reported that in an effort to change this attitude on the part of VA, Secretary of Veterans Affairs, Eric K. Shinseki, has confirmed that VA will be re-examining the disability claims of what could be thousands of Gulf War veterans suffering from ailments. VA does not have an estimate of the number of veterans who may be affected, but it could be in the thousands. VA also plans to improve training for medical staff working with Gulf War veterans and a review of “Gulf War illness” regulations to ensure that veterans receive the compensation they are entitled to by law.

How can we force VA to act on my claim?

We frequently hear complaints from our clients that VA is taking a long time to render a decision on a claim for VA benefits. Given the enormous backlog and understaffing from which VA suffers, this is to be expected.

In fact, delay is inherent in the VA system. After a claim is filed, VA must provide notice to each claimant regarding the information and evidence necessary to substantiate the claim. VA must allow claimants one full year for the submission of that information and evidence before it can decide the claim, although it may decide it faster if the claimant indicates that there is no additional information or evidence to submit. Further, VA must obtain certain records possessed by the federal government and other records that are relevant to the claim if adequately identified by the claimant. Also, if necessary to make a decision on the claim, VA must also provide the claimant with a VA examination or obtain a VA medical opinion. VA must then review all of the evidence and determine whether there is enough to decide the claim and, if not, it must continue working to develop that evidence.

Of course, each step in the process takes time. Ideally, VA should also provide claimants with notification of what is happening on the claim, but it does not always do so.

At some point, it becomes clear that VA is not taking any action on a claim. This may become apparent through the passage of an extraordinary amount of time since the last VA action on a claim, or VA may expressly say that it will not take a particular action, despite repeated requests for it to do so.

As a first step for prompting VA to act, sending a letter to VA asking for a status on the claim or asking it to take the next step may work. At a minimum, the letter requires VA to pull the claimants file from the shelf and look at it. This may be sufficient for VA to realize the next step that needs to be taken and to do so.

A single letter however may not prompt VA to act. When this happens, we have a tool we can use to prompt VA to act. This tool is called a “Petition for Extraordinary Relief in the Nature of a Writ of Mandamus.” Or, simply, a writ petition. Writ petitions are separate actions that are filed in the U.S. Court of Appeals for Veterans Claims that assert that the Secretary of Veterans Affairs, through his personnel, is refusing to take an action that legally must be taken. Such refusal can be shown through the passage of time or through other proof that VA is not acting on a claim in the way it is legally required to do. Notably, writ petitions cannot be used as a substitute for an appeal of an unfavorable VA decision, and they cannot be used to force VA to grant a claim that was otherwise denied.

Before filing a writ petition, a letter should be sent to VA threatening to file a writ petition. The letter should be sent by certified mail, return receipt requested, to prove VA received the letter. The letter should state that, unless VA responds within a certain amount of time (for example, 10 days), a writ petition will be filed in the Court.

If VA fails to respond to that letter, then a writ petition may be necessary. Before involving the Court, it must be determined whether there is a legal basis for filing the petition. Such a circumstance would be where VA has expressly stated it will not take a particular legally required action. If delay is the basis of the petition, then that delay must be so extraordinary as to amount to an arbitrary refusal to act. A few months will not generally suffice, but a delay of more than a year may, depending on the circumstances.

A writ petition must provide a facially valid basis for the Court to grant the petition. If so, the Court will require VA to respond to the writ within a short period of time – generally one month.

Ordinarily, VA will then take some action on the claim. That action may be as little as sending a letter to the claimant or it could be as much as a grant of benefits, or whatever the next legally-required action on the claim may be. If so, this will make the writ petition unnecessary (that is, moot), because VA has taken the action it had refused previously to take. Although not technically a win on the petition, VA’s response to the petition by acting on the claim amounts to a successful resolution.

Sometimes, however, VA will defend its actions and continue to refuse to act. In those circumstances, the judges on the Court will decide whether VA’s defense is valid. If not, the judges will order VA to take the action requested. VA is then under a court order to do so.

Although many writ petitions are filed, the Court grants very few. In fact, since the Court’s creation in November 1988, it has granted fewer than five writ petitions. Even though this represents only a small fraction of the number of writ petitions filed, the writ petition remains a useful tool for prompting VA to act.

As always, it is wise to consult with a legal professional before filing a writ petition. This blog is not intended to provide legal advice, and it should not be relied upon as such.

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