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    Veterans Benefit Claims

    New Conditions in “Veterans and Agent Orange”

    Wednesday, January 8th, 2014

    As many veterans are aware, there are a special set of regulations that provide for “presumptive service connection” for certain conditions if a veteran was exposed to Agent Orange.  This list is important because if a veteran does develop one of the listed condition, even 40 or 50 years after service, and they served on land in Vietnam during the war, service connection is very likely to be automatically granted.  The list is updated periodically based upon the latest scientific studies; in recent years, conditions have been added including ischemic heart disease and Type II Diabetes.  The addition of these diseases and others to the list have benefited thousands of veterans who are now service-connected and receiving VA benefits. 

    As mentioned, VA adds new conditions to the list every few years based on the latest research.  Congress has mandated that the National Academy of Sciences report every two years on this research and that the report assess how likely it is that other diseases should be added to the list.  The latest report, called Veterans and Agent Orange, Update 2012 was just released in December (despite the 2012 date, this report did not come out until late 2013).  The biggest news from the report is a finding that there is “limited and suggestive evidence” that strokes are related to exposure to Agent Orange.  Similar findings about Parkinson’s Disease led to that condition being added to the presumptive list several years ago.  The report does not find that the latest research supports there being a link between any other new condition and Agent Orange.  For example, the report finds that there is still insufficient evidence to currently show a link between Agent Orange and the development of certain leukemias, such as Acute Myeloid Leukemia (AML), Chronic Myelogenous Leukemia (CML) and Myelodysplastic Syndrome (MDS).

    Under the Agent Orange Act of 1991, VA will now have to take the information from the study and can propose rules adding conditions, such as stroke, to the list of presumptive diseases.  The National Academy’s report is available to read on line or download for free: https://www.nap.edu/catalog.php?record_id=18395

    Proposed Changes in the Regulations to File a Claim or Appeal

    Thursday, December 12th, 2013

    In an attempt to combat the backlog, the VA has recently proposed several changes to the claims process. While the VA’s goal is to decrease the amount of time it takes to process a claim, many view the proposed change as potentially harmful to Veterans.

    Currently, to file a claim the Veteran need only send a letter to the VA which informs it of the desire to seek benefits for a condition. The Veteran is not required to use a specific form or identify the exact disability or condition. Additionally, if the Veteran wishes to appeal a decision, then he or she is able to write a letter to the VA to initiate an appeal. However, under the proposed regulations, a Veteran would be required to submit specific VA forms which include detailed information about the claim (including identifying the medical condition or stating the reason(s) why there was an error in the previous decision).  

    Veterans’ advocates have expressed concern over the proposed changes, as the changes will all but eliminate the VA’s obligation to consider a Veteran’s reasonably raised claim(s). Additionally, placing more requirements on the Veteran to fill out a specific form or provide detailed information makes the process more burdensome and less veteran-friendly. Particular concern has been raised for Veterans with mental health conditions or traumatic brain injuries as their conditions may put them at a disadvantage in determining which form to submit and what information to include. As there are a great number of Veterans who file a claim or appeal without representation, navigating the new process could prove difficult.

    Currently, the proposed changes are being reviewed by the Senate Veterans’ Affairs Committee. Though the VA forms have been made available to the public for use, they are not required.

    Did You Serve at Camp LeJeune?

    Monday, July 29th, 2013

    Over the past several years, there has been considerable attention in the media to the past contamination of the water supply at Camp Lejeune. From 1953 to 1987, the water supply was contaminated with TCE, PCE, benzene, vinyl chloride and “other compounds.” For background information on the problem, see https://clnr.hqi.usmc.mil/clwater/Site/background_information.html

    Based on legislation passed in 2012, VA now recognizes the medical problems caused by this water contamination. There are two components to the VA response.

    First, VA health care benefits may be available. These are available for veterans and family members, who served on active duty or lived at Camp Lejeune for at least 30 days, from January 1, 1957 to December 31, 1987. The law noted 15 conditions which may be related to exposure to the contaminated water supply: esophageal cancer, breast cancer, kidney cancer, lung cancer, bladder cancer, multiple myeloma, renal toxicity, female infertility, miscarriage, sclerodoma, non-Hodgkins lymphoma, leukemia, myelodysplastic syndromes, hepatic steatosis, and neurobehavioral effects. If you or your family members lived at Camp Lejeune for 30 days during that period and currently suffers from any of these conditions, you may be eligible for health care benefits from VA. For VA’s fact sheet, see https://www.publichealth.va.gov/exposures/camp-lejeune/index.asp

    Second, for veterans who served on active duty at Camp Lejeune, disability benefits may be available. To file a claim for disability benefits, you must
    1. have been discharged under other than dishonorable conditions,
    2. served at Camp Lejeune between August 1953 and December 1987, and
    3. provide medical evidence that you have a current condition and a medical opinion that the condition is related to your exposure to the contaminated water.
    For more information from VA, see https://www.benefits.va.gov/COMPENSATION/claims-postservice-exposures-camp_leguene_water.asp

    VA is not specific as to what “current conditions,” it will consider – however, it is likely that any of the 15 conditions mentioned for health care benefits are good candidates. Unfortunately, VA takes the position that there is not sufficient evidence of a connection between any of these conditions and the exposure to the contaminants in the water supply to justify a presumption that they are related. Because of this, it will be important for you to obtain a medical opinion that states that your condition is related to the water contamination and fully explains the basis for the opinion.

    Even if you submit your own medical opinion, VA is very likely to obtain an opinion from a VA physician regarding the connection between your condition and the water contamination. Because of this, it is especially important that the opinion you submit be clear and well supported.

    VA beginning to make progress in reducing backlog, but new problems may be emerging…

    Friday, June 21st, 2013

    A recent Washington Post article shows signs of progress in VA’s efforts to reduce the more than 800,000 claim backlog. Director Thomas Murphy reports that “the number of pending cases has decreased by 74,000 over the past 45 days.” VA has pledged to complete all cases that have been pending for more than 125 days by the end of 2015. NBC News has reported that VA officials are indicating that St. Paul, Minnesota, Sioux Falls, South Dakota, and Providence, Rhode Island have already achieved this goal. This represents 3 of VA’s 56 Regional Offices. However, wait times at 12 VA Regional Offices still exceed 400 days on average.

    While these reports may provide some hope to the thousands of veteran’s still waiting for their claims to be processed, the elimination of the backlog at the VA Regional Office level may be creating delays at the appeals level. In 2012, the Board of Veterans Appeals handled 49, 600 claims. In the first 6 months of this year, the Board has already received 37,000 claims. This number could reach 100,000 within the next 4 years. Already veteran’s are experiencing wait times in excess of 1,000 days from the time an appeal is submitted to the Regional Office to the time a decision is issued by the Board of Veteran’s Appeals. Efforts to reduce VA’s backlog at the local level does not currently include efforts to reduce the wait time for veterans who appeal Regional Office decisions, which is likely to continue growing as VA issues decisions on the more than 800,000 pending claims.

    Board members hope that VA’s transition to electronic records will help to reduce this wait time. In the meantime, Laura Eskenazi, the principal deputy vice chairman of the Board of Veterans Appeals, reports that they have already begun hiring new attorneys to handle wave of new appeals expected as VA continues to process the backlogged claims.

    To see the complete articles discussed above, please follow the links below:

    https://www.washingtonpost.com/blogs/federal-eye/wp/2013/06/12/va-says-it-has-reached-tipping-point-in-backlog-struggle/?Post+generic=%3Ftid%3Dsm_twitter_washingtonpost

    https://usnews.nbcnews.com/_news/2013/06/16/18955928-va-hits-backlog-goal-in-3-cities-hint-of-a-fix-or-mirage?lite

    https://www.federalnewsradio.com/108/3363126/As-VA-works-to-eliminate-one-backlog-one-more-might-emerge

    WHY DO VA CLAIMS TAKE SO LONG?

    Monday, November 5th, 2012

    Virtually every veteran claimant has a similar frustration with the slow pace of the VA  claims process. The picture is of claims files stacked in the Winston-Salem, NC regional office, so many that the structural integrity of the building is in question, the weight thought to be too much for the floor structure to bear!

    Winston-Salem has so many claims (over one million) that the RO staff there has reportedly been instructed to stop working on anything except emergency appeals (dying veterans) and focus until October 1 solely on looking at new claims that have never been looked at.

    The story is the same all over the VA system. In Los Angeles, the backlog is so great that even if no new claims were filed beginning now, it would still take three years to clear the backlog. In Chicago 21,299 veterans awaited initial response to claims filed as of August 2012; average wait time for such response is 361 days; average time to initial decision is 1,528 days – that’s 4.2 years!

    Between accumulated backlog of Vietnam era veterans and the newer claims coming in from the Gulf War, Iraq and Afghanistan, the system is backing up much faster than it can discharge claims. Apart from the sheer numbers of claims, the VA is hobbled by a slow antiquated system of paper files. Because the paper claims file has to be used to do most anything on the claim, only one thing can be done at a time: if a VA examiner or the Court has the file for review, the RO will not be doing anything. VA is working on converting to an electronic system, but a quick look at the photo above suggests how enormous an undertaking such a conversion will be.

    What can be done? By the agency, not much, and what it could do, you probably don’t want it to do. In the past, when VA has started incentive programs to speed claims processing, what typically happened is that staffers trying to meet the incentives dealt with claims the quickest way – by denying them. This practice did nothing to improve the quality of claims evaluation. Only a major expenditure by Congress could begin to really address the problem, and it is no secret that the nation has enormous debt. Even if Congress were to appropriate the huge sum of money necessary to hire more staff and acquire additional space and equipment, it would take years to ramp up.

    What can a veteran do? Again, the answer is not much. But there are a few things. First, don’t add to the problem. This does not mean not to file a claim, but if you do file a claim, make sure it is legitimate – don’t keep VA from processing worthwhile claims by submitting bogus claims that it also has to deal with.

    Second, have your claim supported – the basics of claims are simple: to establish service connection there must be a (1) current disability that is (2) causally related to (3) some event in service; if you don’t have evidence proving all three, you’ll be denied. To get a higher rating you have to have evidence that your condition is worse than it is currently rated; you’ll likely need medical evidence to support that. VA is required to locate and obtain medical and service records, but you can request them yourself and get them more quickly.

    Third, respond promptly to requests from VA, but do not re-submit the same material over and over. This just bulks up the claims file, making it more time-consuming and difficult for VA to find anything.

    Fourth, don’t waste your time and VA’s time with rude or abusive phone calls or letters. While VA has weak links like any government bureaucracy, most VA employees are trying their best in extremely difficult circumstances. This doesn’t mean you have to put up quietly with foolishness, but when you call errors to VA’s attention, do it in crisp, clear language that is respectful, to the point, and helps VA see its error and rectify it.

    Finally, while there are not many tools for pushing a system like this to move faster, the law does provide a method for remedying the most outrageous delays. There is a procedure that tries to get the Court to step in and order the agency to do something; it will only do so in cases of extreme delay, e.g. no activity at all for a year. Consult your legal representative about this.

    UPDATE (11/5/2012, 15:19): In working with “The HERO Project” we found something our readers might be interested in.  It’s an interactive map tracking wait time for Veterans Disability Claims with some telling statistics.  Definitely worth the click:  Interactive Veterans Disability Claims Wait Time Map

    Senate confirms two new judges for the Court of Appeals for Veterans Claims

    Tuesday, May 29th, 2012

    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

    Friday, November 4th, 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 & Filetti.

    Tips – When mailing documents to the VA

    Tuesday, July 19th, 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 .

    PRECISION FIRE VS. THE SHOTGUN: Presenting claims to VA

    Wednesday, November 10th, 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.

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

    Thursday, September 23rd, 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.

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