Representing Veterans Before the VA on Claims for Disability Benefits Presented by Bart Stichman National Veterans Legal Services Program

Representing Representing Veterans Before the Veterans Before the

VA on Claims for VA on Claims for Disability BenefitsDisability Benefits

Presented by Bart StichmanPresented by Bart Stichman

National Veterans Legal Services National Veterans Legal Services ProgramProgram

Major VA Benefit Major VA Benefit ProgramsPrograms

Service-Connected Disability Benefits Service-Connected Disability Benefits (“Compensation”)(“Compensation”)

Service-Connected Death Benefits for Service-Connected Death Benefits for qualified survivors of deceased veterans qualified survivors of deceased veterans (“DIC”)(“DIC”)

(Needs-based) Non-Service-Connected (Needs-based) Non-Service-Connected Disability Pension Benefits for war-time Disability Pension Benefits for war-time veteransveterans

(Needs-based) Non-Service-Connected Death (Needs-based) Non-Service-Connected Death Pension Benefits for certain qualified Pension Benefits for certain qualified survivors of deceased war-time veteranssurvivors of deceased war-time veterans

2

TOPIC A: TOPIC A: Entitlement Entitlement Criteria for Service-Criteria for Service-

Connected Connected Disability Disability

CompensationCompensation

3

Service-Connected Service-Connected Disability CompensationDisability Compensation

VA makes up to four determinations in VA makes up to four determinations in deciding a disability compensation deciding a disability compensation claim:claim: Is the claimant a “veteran”? If yes, Is the claimant a “veteran”? If yes, Is veteran entitled to “service connection” Is veteran entitled to “service connection”

for the claimed disability(ies)? If yes,for the claimed disability(ies)? If yes, Degree of the veteran’s service-connected Degree of the veteran’s service-connected

disability anddisability and The effective date of the award of disability The effective date of the award of disability

compensationcompensation

4

Status as a “Veteran”Status as a “Veteran” Definition of Veteran - A “person Definition of Veteran - A “person

who served in the active who served in the active military, naval, or air service, military, naval, or air service, and who was discharged or and who was discharged or released therefrom under released therefrom under conditions other than conditions other than dishonorable” dishonorable”

5

Willful MisconductWillful Misconduct Willful MisconductWillful Misconduct::

Disabilities that result from a veteran’s Disabilities that result from a veteran’s willful misconduct are not willful misconduct are not compensablecompensable ““conscious wrongdoing or known prohibited conscious wrongdoing or known prohibited

actionaction” ”

Alcohol and Substance Abuse:Alcohol and Substance Abuse: Compensation may not be paid for Compensation may not be paid for

disabilities the result of primary disabilities the result of primary alcohol abuse or substance abusealcohol abuse or substance abuse

6

Alcoholism and Alcoholism and Substance Abuse/STDsSubstance Abuse/STDs

Alcoholism/Substance Abuse as Alcoholism/Substance Abuse as Secondary to a Service-Connected Secondary to a Service-Connected Condition(s): Condition(s): Compensation payable if abuse-related Compensation payable if abuse-related

disabilities are secondary to a service-disabilities are secondary to a service-connected disabilityconnected disability Any disability resulting from that alcoholism or Any disability resulting from that alcoholism or

drug abuse, such as cirrhosis of the liver, may drug abuse, such as cirrhosis of the liver, may also be service-connectedalso be service-connected

Residuals of venereal disease or HIV are Residuals of venereal disease or HIV are not willful misconduct not willful misconduct

7

Status as a “Veteran” Status as a “Veteran” (Cont’d)(Cont’d)

Character of DischargeCharacter of DischargeDischarge or release must have been “under Discharge or release must have been “under conditions other than ‘dishonorable’” conditions other than ‘dishonorable’” Honorable Discharge and General Honorable Discharge and General Discharge Under Honorable Conditions → Discharge Under Honorable Conditions → qualifiesqualifiesDischarge Under Other Than Honorable Discharge Under Other Than Honorable Conditions (OTH) → may or may not qualify Conditions (OTH) → may or may not qualify (VA makes individualized “character of (VA makes individualized “character of service” determination) service” determination)

8

Overview of Entitlement Overview of Entitlement CriteriaCriteria

Veterans are entitled to Veterans are entitled to compensation for disabilities compensation for disabilities incurred in or aggravated during incurred in or aggravated during period of active military, naval, or air period of active military, naval, or air serviceservice

Note - Service department findings are Note - Service department findings are binding on VA for purposes of binding on VA for purposes of establishing service in the U.S. Armed establishing service in the U.S. Armed ForcesForces

9

Entitlement Criteria Entitlement Criteria (Cont’d)(Cont’d)

Example:Example: A battlefield wound to A battlefield wound to knee and a knee injured while knee and a knee injured while sliding into second base during a sliding into second base during a baseball game played during active baseball game played during active service may both be service-service may both be service-connected conditionsconnected conditions

10

Entitlement Criteria Entitlement Criteria (Cont’d)(Cont’d)

Assuming “veteran” status there are Assuming “veteran” status there are three basic entitlement criteria: three basic entitlement criteria: Evidence the veteran currently suffers Evidence the veteran currently suffers

from a disabilityfrom a disability Evidence of an incident, injury, or event Evidence of an incident, injury, or event

during the period of the veteran’s during the period of the veteran’s military servicemilitary service

Evidence of a link between the current Evidence of a link between the current disability and the incident, injury, or disability and the incident, injury, or event during serviceevent during service

11

Three Criteria Three Criteria for Service Connectionfor Service Connection

First Criterion:First Criterion: Evidence that Evidence that the veteran currently suffers the veteran currently suffers from a disabilityfrom a disability

Disability almost always must be Disability almost always must be diagnosed by a medical professionaldiagnosed by a medical professional

Under VA’s duty to assist – lay Under VA’s duty to assist – lay evidence of vet’s recurrent symptoms evidence of vet’s recurrent symptoms may force the VA to provide a free VA may force the VA to provide a free VA medical examination to diagnose the medical examination to diagnose the disabilitydisability

12

Three Criteria for Three Criteria for Service Connection (Cont’d)Service Connection (Cont’d)

Second Criterion:Second Criterion: Evidence of Evidence of an event, injury, or disease an event, injury, or disease that occurred during the that occurred during the period of active military period of active military serviceservice

VA is required to consider lay VA is required to consider lay evidence; no corroborative evidence evidence; no corroborative evidence technically requiredtechnically required

Relaxed evidentiary standards for Relaxed evidentiary standards for combat veteranscombat veterans

13

Three Criteria for Three Criteria for Service Connection (Cont’d)Service Connection (Cont’d)

Third Criterion: A link or Third Criterion: A link or nexus between the current nexus between the current disability and an event, injury disability and an event, injury or disease that occurred during or disease that occurred during the period of military servicethe period of military service

There are five major ways to establish There are five major ways to establish linkage; VA must consider each theory linkage; VA must consider each theory reasonably raised by the evidence of recordreasonably raised by the evidence of record

VA must make reasonable efforts to assist vet VA must make reasonable efforts to assist vet in substantiating the claimin substantiating the claim

14

Five Ways To Establish a Five Ways To Establish a Disability is Service-Disability is Service-

Connected Connected DirectlyDirectly: Disability was manifested or : Disability was manifested or

diagnosed during military service, or diagnosed during military service, or an injury, event or incident in service an injury, event or incident in service caused the veteran eventually to suffer caused the veteran eventually to suffer from a disabilityfrom a disability ““Delayed Direct Service Connection”Delayed Direct Service Connection” Chronicity and ContinuityChronicity and Continuity

Chronic Conditions - A condition shown in Chronic Conditions - A condition shown in service is determined to be service is determined to be “chronic“chronic””

Continuity of SymptomatologyContinuity of Symptomatology15

Five Ways To Establish a Five Ways To Establish a Disability is Service-Connected Disability is Service-Connected

(Cont’d)(Cont’d) Aggravation:Aggravation: worsening of a worsening of a

condition that preexisted servicecondition that preexisted service Temporary or intermittent flare-ups Temporary or intermittent flare-ups

are not sufficient unless the underlying are not sufficient unless the underlying condition permanently worsened condition permanently worsened

Presumption of Soundness - Unless the Presumption of Soundness - Unless the service entrance exam indicates service entrance exam indicates otherwise, the VA presumes the otherwise, the VA presumes the veteran was in sound condition when veteran was in sound condition when he or she entered the servicehe or she entered the service

16


(Cont’d)(Cont’d) Statutory Presumption:Statutory Presumption:

Chronic DiseasesChronic Diseases Tropical DiseasesTropical Diseases POWsPOWs Persian Gulf VeteransPersian Gulf Veterans Radiation-Exposed VeteransRadiation-Exposed Veterans Exposure to Herbicide Agents Exposure to Herbicide Agents

(Agent Orange)(Agent Orange)17


(Cont’d)(Cont’d) Secondarily:Secondarily: Demonstrating Demonstrating

that a condition is proximately the that a condition is proximately the result of, or linked to, a service-result of, or linked to, a service-connected conditionconnected condition Ex:Ex: Secondary SC may be established Secondary SC may be established

for a mental condition caused or for a mental condition caused or aggravated by a SC physical conditionaggravated by a SC physical condition

Likewise, secondary SC may be Likewise, secondary SC may be established for a physical condition established for a physical condition caused by a SC mental conditioncaused by a SC mental condition

18


(Cont’d)(Cont’d) VA Medical Treatment or VA Medical Treatment or

Vocational Rehabilitation:Vocational Rehabilitation: Disability caused by VA medical Disability caused by VA medical

care or vocational rehabilitation may care or vocational rehabilitation may be treated “as if” it is connected to be treated “as if” it is connected to serviceservice

Requires showing of fault or Requires showing of fault or accidentaccident

19

TOPIC B: TOPIC B: Establishing Establishing

the Appropriate the Appropriate Disability Rating Disability Rating

Percentage Percentage

20

Establishing the Establishing the Appropriate Percentage of Appropriate Percentage of

DisabilityDisability Assignment of Appropriate Assignment of Appropriate

percentage:percentage: Correct diagnosis and the assignment Correct diagnosis and the assignment

of the correct “diagnostic code” (DC) of the correct “diagnostic code” (DC) Determining the current Determining the current

symptomatologysymptomatology Comparing the symptomatology Comparing the symptomatology

against the appropriate diagnostic against the appropriate diagnostic code code

21

Establishing the Appropriate Establishing the Appropriate Percentage of Disability Percentage of Disability

(Cont’d)(Cont’d)General Information:General Information: Percentage designed to reflect the Percentage designed to reflect the

average impairment in earning capacityaverage impairment in earning capacity ≥≥2 SC disabilities → combined disability 2 SC disabilities → combined disability

rating (percentages are not added rating (percentages are not added arithmetically) arithmetically)

Different disabilities may arise from a Different disabilities may arise from a single disease entity → separated single disease entity → separated disability ratingsdisability ratings

22

Establishing the Appropriate Establishing the Appropriate Percentage of Disability Percentage of Disability

(Cont’d)(Cont’d)General Information:General Information: Percentages are set in increments of 10, Percentages are set in increments of 10,

but may be zerobut may be zero Functional loss due to pain and weakness Functional loss due to pain and weakness

has to be separately considered and ratedhas to be separately considered and rated One disability may be compensated under One disability may be compensated under

multiple diagnostic codes→ separate multiple diagnostic codes→ separate disability ratings -- if “none of the disability ratings -- if “none of the symptomatology . . . is duplicative of, or symptomatology . . . is duplicative of, or overlapping. . . .”overlapping. . . .”

23

Disability PaymentsDisability Payments Disability compensation is not taxable Disability compensation is not taxable

and is not subject to garnishment or and is not subject to garnishment or attachmentattachment

The level of payments is fixed by statuteThe level of payments is fixed by statute The following rates are effective 12/1/2012The following rates are effective 12/1/2012

10% combined rating pays $129 per month10% combined rating pays $129 per month 50% combined rating pays $810 per month 50% combined rating pays $810 per month 100% combined rating pays $2,816 per month100% combined rating pays $2,816 per month

24

Additional CompensationAdditional Compensation Additional Compensation for Dependents if at Additional Compensation for Dependents if at

least 30% disabled for service-connected least 30% disabled for service-connected disabilities disabilities

MonthlyMonthly rates for dependents of veterans rates for dependents of veterans rated 100%rated 100% Spouse $157Spouse $157 No spouse, one child $105No spouse, one child $105 Spouse and one child $272Spouse and one child $272 Each additional child $78Each additional child $78 Dependent parent $126Dependent parent $126 Child pursuing post-secondary education $252Child pursuing post-secondary education $252

25

Eligibility for Increased or Eligibility for Increased or Special Monthly Special Monthly CompensationCompensation

Increased or SMC above 100% Increased or SMC above 100% amount:amount: Aid and AttendanceAid and Attendance In other situationsIn other situations

26

Total Disability Based on Total Disability Based on Individual Unemployability Individual Unemployability

(TDIU)(TDIU) TDIU - TDIU - 100% rating even though 100% rating even though

the service-connected condition(s) the service-connected condition(s) are rated less than 100%are rated less than 100% Disabled veteran is unable to secure Disabled veteran is unable to secure

or follow a substantially gainful or follow a substantially gainful occupation as a result of service-occupation as a result of service-connected disabilitiesconnected disabilities

27


(Cont’d)(Cont’d) To qualify:To qualify:

Unable to engage in a substantially Unable to engage in a substantially gainful occupation (SGO); andgainful occupation (SGO); and

Veteran has: Veteran has: One SC disability rated at 60% or more; orOne SC disability rated at 60% or more; or Two or more disabilities, one of which is Two or more disabilities, one of which is

rated at least 40% rated at least 40% andand additional service- additional service-connected disabilities to bring the combined connected disabilities to bring the combined rating to 70% or more; orrating to 70% or more; or

Can by assigned an extraschedular rating Can by assigned an extraschedular rating under 38 C.F.R. § 4.16(b)under 38 C.F.R. § 4.16(b)

28


(Cont’d)(Cont’d) A SGO provides annual income that A SGO provides annual income that

exceeds the poverty threshold for one exceeds the poverty threshold for one personperson

Education and occupational history Education and occupational history consideredconsidered

““Marginal employment” should not be Marginal employment” should not be considered SGOconsidered SGO

TDIU should be provided to all TDIU should be provided to all veterans who are unable to secure veterans who are unable to secure and follow an SGO due to service-and follow an SGO due to service-connected conditions connected conditions

29

Extraschedular Rating for Extraschedular Rating for a a

Service-Connected Service-Connected DisabilityDisability Extraschedular RatingExtraschedular Rating

Where a case “presents such an Where a case “presents such an exceptional or unusual disability exceptional or unusual disability picture with such related factors picture with such related factors as marked interference with as marked interference with employment or frequent periods employment or frequent periods of hospitalization as to render of hospitalization as to render impractical the application of the impractical the application of the regular schedular standards”regular schedular standards”

30

Reevaluation of Reevaluation of DisabilityDisability

VA may choose to reevaluate a VA may choose to reevaluate a service-connected conditionservice-connected condition VA may increase or decrease the VA may increase or decrease the

percentage evaluationpercentage evaluation If there is no change, the VA will If there is no change, the VA will

“confirm and continue” “confirm and continue” VA will usually schedule a review VA will usually schedule a review

examinationexamination

31

Reduction in Reduction in EvaluationEvaluation

Reduction of an established Reduction of an established percentage:percentage: VA must demonstrate the SC VA must demonstrate the SC

condition has improved to the condition has improved to the point where a lower percentage point where a lower percentage of disability should be assignedof disability should be assigned

Possible in some cases to gauge Possible in some cases to gauge with non-medical evidencewith non-medical evidence

32

Reduction of a Reduction of a Total Schedular Total Schedular

EvaluationEvaluation Reduction of a Total Schedular Reduction of a Total Schedular

Evaluation:Evaluation: An examination showing “material An examination showing “material

improvement” under “the ordinary improvement” under “the ordinary conditions of life” is requiredconditions of life” is required

VA must compare the symptomatology VA must compare the symptomatology which formed the basis for the previous which formed the basis for the previous grant with the symptomatology of the grant with the symptomatology of the most recent or last exammost recent or last exam

33

Reduction of Grant Reduction of Grant of IUof IU

Reduction of Grant of IUReduction of Grant of IU VA must demonstrate that “actual VA must demonstrate that “actual

employability is established by employability is established by clear and convincing evidence”clear and convincing evidence”

If engaged in SGO, TDIU may not If engaged in SGO, TDIU may not be reduced solely on that basis be reduced solely on that basis unless the veteran maintains the unless the veteran maintains the occupation for 12 consecutive occupation for 12 consecutive monthsmonths

34

Rating in Effect for 5 Rating in Effect for 5 YearsYears

Rating In Effect for 5 Years or Rating In Effect for 5 Years or MoreMore May not reduce the rating unless May not reduce the rating unless

all evidence of record shows all evidence of record shows sustained improvementsustained improvement

Cannot be reduced on Cannot be reduced on examinations reflecting the examinations reflecting the results of bed restresults of bed rest

35

Rating in Effect for 5 Years Rating in Effect for 5 Years (Cont’d)(Cont’d)

To reduce a rating in effect for 5 Years:To reduce a rating in effect for 5 Years: Must find there has been an improvementMust find there has been an improvement Improvement in the ability to live and workImprovement in the ability to live and work History of the disability must be reviewed History of the disability must be reviewed Reduction must be based upon a thorough Reduction must be based upon a thorough

current examinationcurrent examination Must find “it reasonably certain that the Must find “it reasonably certain that the

improvement will be maintained under the improvement will be maintained under the ordinary conditions of life”ordinary conditions of life”

36

TOPIC C: TOPIC C: VA Claims VA Claims Adjudication Adjudication

ProcessProcess

37

Adjudication Process at Adjudication Process at the VAROthe VARO

The process begins with receipt of a claim The process begins with receipt of a claim Formal Claim Formal Claim Informal ClaimInformal Claim

Both formal and informal claims must show: Both formal and informal claims must show: an intent to apply for benefitsan intent to apply for benefits an identification of the benefits soughtan identification of the benefits sought a communication in writinga communication in writing

Inferred ClaimInferred Claim Claim not directly articulated by the claimant Claim not directly articulated by the claimant

but reasonably raised by the evidence of recordbut reasonably raised by the evidence of record

38

Adjudication at the VARO Adjudication at the VARO (Cont’d)(Cont’d)

ROs are required to notify the ROs are required to notify the claimant of:claimant of: Evidence/information necessary to Evidence/information necessary to

prove the claimprove the claim What information/evidence the What information/evidence the

claimant should provideclaimant should provide What information/evidence VA will What information/evidence VA will

attempt to obtainattempt to obtain Claimant has one year from the date of Claimant has one year from the date of

notification to respond with requested notification to respond with requested information/evidenceinformation/evidence

39

Adjudication at the VARO Adjudication at the VARO (Cont’d)(Cont’d)

Then the case is referred to an RO Then the case is referred to an RO rating specialistrating specialist The decision is recorded in a VA rating The decision is recorded in a VA rating

decision decision

Notification letter to claimant and Notification letter to claimant and “Rating Decision” includes:“Rating Decision” includes:

A statement of the reasons for the decisionA statement of the reasons for the decision A summary of the evidence considered by the A summary of the evidence considered by the

VAVA Notice of procedural and appellate rightsNotice of procedural and appellate rights

40

Administrative Appellate Administrative Appellate ProcessProcess

To initiate an appeal:To initiate an appeal:

Claimant or claimant’s authorized rep must file a written notice of disagreement (NOD), which must:

• Express disagreement with a specific determination

• Express desire for appellate review

• Be filed with the RO• Within one year of the RO

decision

41

Administrative Administrative Appellate Process Appellate Process

(Cont’d)(Cont’d) Upon receipt of the NOD, Upon receipt of the NOD,

VARO must review the claims VARO must review the claims file and either:file and either:

Allow (i.e., grant) the claim; or Allow (i.e., grant) the claim; or

Issue a Statement of the Case Issue a Statement of the Case (SOC)(SOC)

42


(Cont’d)(Cont’d) De NovoDe Novo Review by DRO: Review by DRO:

Optional review takes place Optional review takes place between the filing of the NOD between the filing of the NOD and VA’s issuance of the SOCand VA’s issuance of the SOC

DRO review must be requested DRO review must be requested within 60 days after date of VA within 60 days after date of VA letter offering DRO review letter offering DRO review

43


(Cont’d)(Cont’d) DRO may conduct an informal DRO may conduct an informal

conference or a hearingconference or a hearing DRO may uphold, revise, or reverse, DRO may uphold, revise, or reverse,

but may but may notnot revise or reverse in a revise or reverse in a manner adverse to the claimant unless manner adverse to the claimant unless the earlier decision contained clear the earlier decision contained clear and unmistakable errorand unmistakable error

Traditional appellate process Traditional appellate process proceeds as usual after the DRO proceeds as usual after the DRO decisiondecision

44

Regional Office Regional Office HearingsHearings

Regional Office HearingsRegional Office Hearings Veteran can have a hearing before a Veteran can have a hearing before a

DRO or other VA employeeDRO or other VA employee Can be held “at any time”Can be held “at any time” Hearing officer must “explain fully the Hearing officer must “explain fully the

issues and suggest the submission of issues and suggest the submission of evidence which the claimant may have evidence which the claimant may have overlooked and which would be of overlooked and which would be of advantage to the claimant’s position”advantage to the claimant’s position”

45

Substantive Appeal - VA Substantive Appeal - VA Form 9Form 9

Substantive AppealSubstantive Appeal After the SOC claimant must perfect the After the SOC claimant must perfect the

appealappeal File a VA Form 9File a VA Form 9 VA Form 9 should be filed with the RO VA Form 9 should be filed with the RO

that made the decision being appealedthat made the decision being appealed Veteran has 60 days from SOC or the Veteran has 60 days from SOC or the

remainder of the one-year period that remainder of the one-year period that began with the date of the mailing of the began with the date of the mailing of the VA letter of denial - whichever is longerVA letter of denial - whichever is longer

46

Substantive Appeal Substantive Appeal (Cont’d)(Cont’d)

VA Form 9 should include:VA Form 9 should include: Factual and legal errors in the RO Factual and legal errors in the RO

decisiondecision Can raise new theories, expand the Can raise new theories, expand the

issues before the BVA, and present issues before the BVA, and present claims for different VA benefitsclaims for different VA benefits

RO may respond to the VA Form 9 RO may respond to the VA Form 9 with a rating decision or with a rating decision or Supplemental Statement of the Case Supplemental Statement of the Case (SSOC)(SSOC)

47

Board of Veterans’ Board of Veterans’ AppealsAppeals

BVA is the final arbiter BVA is the final arbiter Assigned to a single Board Assigned to a single Board

membermember Jurisdiction over all questions on Jurisdiction over all questions on

claims involving benefits under the claims involving benefits under the laws administered by the VAlaws administered by the VA

No jurisdiction over medical No jurisdiction over medical decisionsdecisions

Case is considered Case is considered de novode novo48

Board of Veterans’ Appeals Board of Veterans’ Appeals (Cont’d)(Cont’d)

A claimant may present new A claimant may present new documentary evidence and/or documentary evidence and/or witnesses witnesses

BVA must remand to the agency of BVA must remand to the agency of original jurisdiction if further original jurisdiction if further evidence, clarification of evidence, evidence, clarification of evidence, or correction of a procedural or correction of a procedural defect is neededdefect is needed

49


Appellant may request an IME opinionAppellant may request an IME opinion Must show “a complex or controversial Must show “a complex or controversial

medical or legal issue involved in the medical or legal issue involved in the appeal”appeal”

Appellant has a right to a hearing:Appellant has a right to a hearing: Before a BVA member sitting in Before a BVA member sitting in

Washington D.C. Washington D.C. Before a traveling Board member at a RO Before a traveling Board member at a RO A videoconference hearing at a regional A videoconference hearing at a regional

VA facility VA facility

50


Precedent CAVC decisions establishing a Precedent CAVC decisions establishing a rule of law rule of law mustmust be followed by the be followed by the RO/BVARO/BVA Also bound to follow substantive manual Also bound to follow substantive manual

provisionsprovisions All BVA decisions must contain “a written All BVA decisions must contain “a written

statement of . . . reasons or bases. . . .”statement of . . . reasons or bases. . . .” Must mail a copy to the claimant and repMust mail a copy to the claimant and rep BVA decisions can be appealed to the BVA decisions can be appealed to the

CAVCCAVC

51


Statistical Summary of BVA Statistical Summary of BVA Dispositions:Dispositions: 48,588 dispositions48,588 dispositions in FY 2011 in FY 2011

Allow/grant in 28.5% of casesAllow/grant in 28.5% of cases Remanded 44.2% of casesRemanded 44.2% of cases Denied 24.2% of cases Denied 24.2% of cases An additional 3.1% were disposed of An additional 3.1% were disposed of

through other meansthrough other means

52

TOPIC D: TOPIC D: Judicial Review of a Judicial Review of a Final BVA Decision Final BVA Decision

Denying BenefitsDenying Benefits

53

The U.S. Court of Appeals The U.S. Court of Appeals for Veterans Claims (CAVC)for Veterans Claims (CAVC) The Veterans’ Judicial Review Act The Veterans’ Judicial Review Act

(VJRA) of 1988 created the U.S. Court (VJRA) of 1988 created the U.S. Court of Veterans Appealsof Veterans Appeals

There are now 9 judges on CAVC There are now 9 judges on CAVC www.uscourts.cavc.gov CAVC has exclusive jurisdiction to CAVC has exclusive jurisdiction to

review BVA decisionsreview BVA decisions Only claimants who do not completely Only claimants who do not completely

prevail at the BVA can appealprevail at the BVA can appeal54

Jurisdictional Jurisdictional RequirementsRequirements

Two Jurisdictional Requirements Two Jurisdictional Requirements A final BVA decision A final BVA decision

A BVA decision remanding a claim to a VA A BVA decision remanding a claim to a VA regional office is not a final decisionregional office is not a final decision

Timely Notice of Appeal (NOA)Timely Notice of Appeal (NOA) Must be received by the CAVC or Must be received by the CAVC or

postmarked by USPS within 120 days of postmarked by USPS within 120 days of date on which BVA mails its final decisiondate on which BVA mails its final decision

Equitable tolling of the 120-day appeal Equitable tolling of the 120-day appeal period is potentially available period is potentially available

55

Jurisdictional Jurisdictional QuestionsQuestions

Motion for Reconsideration/VacateMotion for Reconsideration/Vacate Motion filed at BVA within the 120-day Motion filed at BVA within the 120-day

CAVC appeal periodCAVC appeal period New 120-day CAVC appeal period begins:New 120-day CAVC appeal period begins:

The date the BVA receives the claimant’s notice of The date the BVA receives the claimant’s notice of withdrawal; orwithdrawal; or

The date the BVA properly sends the claimant notice of The date the BVA properly sends the claimant notice of denial; or denial; or

The date the BVA properly sends notice of its decision The date the BVA properly sends notice of its decision to deny complete relief after having granted the to deny complete relief after having granted the claimant’s motionclaimant’s motion

No need to file a protective NOA with CAVCNo need to file a protective NOA with CAVC

56

Jurisdictional Questions Jurisdictional Questions (Cont’d)(Cont’d)

What happens when an NOA is What happens when an NOA is filed at the CAVC and then a filed at the CAVC and then a Motion for Reconsideration is filed Motion for Reconsideration is filed at the BVA?at the BVA? BVA must obtain the Court’s BVA must obtain the Court’s

permission to vacate decision permission to vacate decision Court will not dismiss the appeal if Court will not dismiss the appeal if

the NOA filed prior to the motion for the NOA filed prior to the motion for reconsideration/vacatereconsideration/vacate

57

Jurisdictional Questions Jurisdictional Questions (Cont’d)(Cont’d)

Two Other Scenarios:Two Other Scenarios: If NOA and reconsideration/vacate If NOA and reconsideration/vacate

filed simultaneously, jurisdiction will filed simultaneously, jurisdiction will remain with the Boardremain with the Board

If the motion for reconsideration is If the motion for reconsideration is postmarked within the 120-day appeal postmarked within the 120-day appeal period to the CAVC, the claimant will period to the CAVC, the claimant will be able to receive Court review of the be able to receive Court review of the BVA appellate decisionBVA appellate decision

58

Jurisdictional Jurisdictional ExceptionException

Petition for Extraordinary Relief in Petition for Extraordinary Relief in the Nature of Mandamus the Nature of Mandamus The All Writs ActThe All Writs Act

CAVC has jurisdiction to issue an CAVC has jurisdiction to issue an extraordinary writ (writ of mandamus) to VA extraordinary writ (writ of mandamus) to VA officialsofficials

Can compel VA action Can compel VA action Based upon Based upon potential potential jurisdictionjurisdiction

Petitioner must demonstrate: (1) a clear and Petitioner must demonstrate: (1) a clear and indisputable right to a writ and (2) the lack of indisputable right to a writ and (2) the lack of alternative means to obtain the relief soughtalternative means to obtain the relief sought

59

Single-Judge or Panel Single-Judge or Panel Disposition?Disposition?

Single-Judge DispositionSingle-Judge Disposition Single-judge decision issued in > Single-judge decision issued in >

90% of all contested appeals 90% of all contested appeals Single-judge decisions are not Single-judge decisions are not

precedential, not citable and not precedential, not citable and not published in Vet. App. reporterpublished in Vet. App. reporter

Standards used by screening judge Standards used by screening judge to decide whether to decide by to decide whether to decide by single-judge:single-judge: Case is of relative simplicity and:Case is of relative simplicity and:

Does not establish a new rule of lawDoes not establish a new rule of law

60

Single-Judge or Single-Judge or Panel Disposition Panel Disposition

(Cont’d)(Cont’d) Factors cont’d:Factors cont’d:

Does not alter, modify, criticize, or Does not alter, modify, criticize, or clarify an existing rule of lawclarify an existing rule of law

Does not apply an established rule of Does not apply an established rule of law to a novel fact situationlaw to a novel fact situation

Does not constitute the only recent, Does not constitute the only recent, binding precedent on a particular point of binding precedent on a particular point of law within the power of the Court to law within the power of the Court to decidedecide

Does not involve a legal issue of Does not involve a legal issue of continuing public interest; continuing public interest; andand

The outcome is not reasonably debatableThe outcome is not reasonably debatable

61

Scope of CAVC Scope of CAVC ReviewReview Scope is based upon Administrative Scope is based upon Administrative

Procedure Act, with certain Procedure Act, with certain exceptionsexceptions

CAVC review is based exclusively on CAVC review is based exclusively on the record of proceedings that was the record of proceedings that was before the Secretary and the BVAbefore the Secretary and the BVA Includes “relevant” documents within Includes “relevant” documents within

the Secretary’s control prior to the the Secretary’s control prior to the BVA decisionBVA decision

62

Scope of CAVC Review Scope of CAVC Review (Cont’d)(Cont’d)

Under 38 U.S.C. § 7261(a), CAVC can:Under 38 U.S.C. § 7261(a), CAVC can: Decide all relevant questions of law, Decide all relevant questions of law,

interpret constitutional, statutory, and interpret constitutional, statutory, and regulatory provisionsregulatory provisions

Determine the meaning or applicability of Determine the meaning or applicability of the terms of an action of the Secretarythe terms of an action of the Secretary

Compel action of the Secretary unlawfully Compel action of the Secretary unlawfully withheld or unreasonably delayedwithheld or unreasonably delayed

63

Scope of CAVC Review Scope of CAVC Review (Cont’d)(Cont’d)

38 U.S.C. § 7261(a) Cont’d:38 U.S.C. § 7261(a) Cont’d: Hold unlawful and set aside decisions of Hold unlawful and set aside decisions of

the BVA found to be:the BVA found to be: arbitrary, capriciousarbitrary, capricious,, an abuse of discretion, an abuse of discretion,

or otherwise not in accordance with lawor otherwise not in accordance with law contrary to constitutional right, power, contrary to constitutional right, power,

privilege, or immunityprivilege, or immunity in excess of statutory authority, or in excess of statutory authority, or

limitations, or in violation of a statutory rightlimitations, or in violation of a statutory right without observance of procedure required by without observance of procedure required by

lawlaw

64

Standards of Standards of ReviewReview Standard of Review for Findings of Standard of Review for Findings of

Fact: Fact: Court can hold unlawful, set aside, or Court can hold unlawful, set aside, or

reverse factual finding if it is “clearly reverse factual finding if it is “clearly erroneous” erroneous” CE = “when although there is evidence to CE = “when although there is evidence to

support it, the reviewing court on the entire support it, the reviewing court on the entire evidence is left with the definite and firm evidence is left with the definite and firm conviction that a mistake has been committed” conviction that a mistake has been committed”

““Where there are two permissible views of the Where there are two permissible views of the evidence, the fact finder’s choice between them evidence, the fact finder’s choice between them cannot be clearly erroneous”cannot be clearly erroneous”

65

Standards of Review Standards of Review (Cont’d)(Cont’d)

Standard of Review for Standard of Review for Issues of Law:Issues of Law: De NovoDe Novo Review of Review of

The proper interpretation of a statute The proper interpretation of a statute or regulationor regulation

Whether appellant would be Whether appellant would be prejudiced by the BVA deciding an prejudiced by the BVA deciding an issue not first decided by the ROissue not first decided by the RO

66

Standards of Review Standards of Review (Cont’d)(Cont’d)

Standard of Review for Application of Standard of Review for Application of Law to Facts: Law to Facts: Arbitrary/capriciousArbitrary/capricious ExamplesExamples

A challenge to the VA’s selection of the A challenge to the VA’s selection of the appropriate diagnostic code for rating appropriate diagnostic code for rating

Whether BVA erred in determining that a Whether BVA erred in determining that a prior final agency decision did not contain prior final agency decision did not contain clear and unmistakable error (CUE)clear and unmistakable error (CUE)

67

Standards of Review Standards of Review (Cont’d)(Cont’d) CAVC must review the record of CAVC must review the record of

proceedings below and take due account proceedings below and take due account of: of: VA’s application of the benefit-of-the-doubt VA’s application of the benefit-of-the-doubt

rulerule Rule of prejudicial errorRule of prejudicial error

CAVC may CAVC may notnot review or modify the VA review or modify the VA schedule of ratings for disabilities schedule of ratings for disabilities

CAVC may review VA regulations and CAVC may review VA regulations and precedential opinions of the VA General precedential opinions of the VA General CounselCounsel

68

Exhaustion of Exhaustion of Administrative Administrative

RemediesRemedies Applicability of the doctrine to Applicability of the doctrine to

CAVC review:CAVC review: If the claimant never raised or If the claimant never raised or

discussed an argument/issue while the discussed an argument/issue while the claim was pending before VA, the claim was pending before VA, the Secretary may argue that the Court Secretary may argue that the Court should not consider the issueshould not consider the issue

Will the Court hear the claimant Will the Court hear the claimant arguments raised for first time at arguments raised for first time at CAVC level?CAVC level?

69

Exhaustion of Exhaustion of Administrative Remedies Administrative Remedies

(Cont’d)(Cont’d) Courts have established two rules that Courts have established two rules that

are favorable to claimants:are favorable to claimants: BVA is required to address all legal theories BVA is required to address all legal theories

reasonably raised by the evidence even reasonably raised by the evidence even though the claimant did not argue these though the claimant did not argue these legal theorieslegal theories

TDIU automatically considered if TDIU automatically considered if Claimant has a disability rating that meets the Claimant has a disability rating that meets the

minimum schedular criteria for assignment of a minimum schedular criteria for assignment of a TDIU rating TDIU rating andand

Evidence under VA control that the veteran is Evidence under VA control that the veteran is unemployable due to service-connected unemployable due to service-connected disabilitiesdisabilities

70

Exhaustion of Exhaustion of Administrative Remedies Administrative Remedies

(Cont’d)(Cont’d) CAVC has jurisdiction to consider any CAVC has jurisdiction to consider any issue the claimant raises for the first timeissue the claimant raises for the first time Federal Circuit ruled that this does not mean Federal Circuit ruled that this does not mean

it it must must consider new issuesconsider new issues But the Supreme Court ruled in a latter SSA But the Supreme Court ruled in a latter SSA

case: case: Claimant is Claimant is notnot required to raise an issue required to raise an issue Can raise the new issue for the first time in federal Can raise the new issue for the first time in federal

court and the court court and the court mustmust consider it. consider it.

CAVC is applying issue exhaustion CAVC is applying issue exhaustion principles in a manner favorable to principles in a manner favorable to claimantsclaimants

71

TOPIC E: TOPIC E: Methods Methods for Obtaining for Obtaining

Benefits After a Benefits After a Final VA DenialFinal VA Denial

72

Major Options for a Major Options for a ClaimantClaimant

Major Options:Major Options: Reopened claim at the ROReopened claim at the RO CUE motion at the RO or BVACUE motion at the RO or BVA Filing a Notice of Appeal with the CAVCFiling a Notice of Appeal with the CAVC Filing a Motion for Reconsideration Filing a Motion for Reconsideration

with the BVAwith the BVA Key Factor - “Effective date” of Key Factor - “Effective date” of

benefitsbenefits Date from which benefits will be paidDate from which benefits will be paid

73

Reopened ClaimReopened Claim Reopened Claim – Two StepsReopened Claim – Two Steps

STEP ONE: Has the claimant STEP ONE: Has the claimant submitted “new and material submitted “new and material evidence”?evidence”? ““new” - existing evidence not previously new” - existing evidence not previously

submitted to agency decisionmakerssubmitted to agency decisionmakers ““material”material” - if it, by itself or when - if it, by itself or when

considered with previous evidence of considered with previous evidence of record, relates to at least one of the record, relates to at least one of the unproven facts necessary to substantiate unproven facts necessary to substantiate the claimthe claim

74

Reopened Claim Reopened Claim (Cont’d)(Cont’d)

““New and material” evidence does not New and material” evidence does not need to relate to every previously need to relate to every previously unproven element of a claimunproven element of a claim VA must determine whether the new VA must determine whether the new

evidence, the previous evidence of record, evidence, the previous evidence of record, andand the additional evidence that future VA the additional evidence that future VA assistance could reasonably be expected to assistance could reasonably be expected to provide, raises a reasonable possibility of provide, raises a reasonable possibility of substantiating the claim substantiating the claim

VA must presume the credibility of the VA must presume the credibility of the newly submitted evidencenewly submitted evidence

75

Reopened Claim Reopened Claim (Cont’d)(Cont’d)

STEP TWO:STEP TWO: De NovoDe Novo Review Review VA “must evaluate the merits of the VA “must evaluate the merits of the

veteran’s claim in light of veteran’s claim in light of allall evidence, evidence, both old and new.” both old and new.”

There is no time limit within which a There is no time limit within which a claim to reopen must be filed and claim to reopen must be filed and there is no limit on the number of there is no limit on the number of claims to reopen a claimant may fileclaims to reopen a claimant may file

76

The Following are The Following are NOTNOT Reopened ClaimsReopened Claims

Claims for increased ratingsClaims for increased ratings Pension claims for P & T disability ratingsPension claims for P & T disability ratings TDIU claims TDIU claims Service connection for the POW Service connection for the POW

presumptive diseasespresumptive diseases Claims filed after a change in the Claims filed after a change in the

substantive criteria for entitlement to a substantive criteria for entitlement to a benefitbenefit

Claim based upon a different factual basis Claim based upon a different factual basis or a separate and distinctly diagnosed or a separate and distinctly diagnosed disease or injury than a prior claimdisease or injury than a prior claim

77

Motion for Motion for ReconsiderationReconsideration May move for reconsideration at May move for reconsideration at

anytimeanytime Motion must be:Motion must be:

In writingIn writing Filed with the BVA Chairman and include Filed with the BVA Chairman and include

the veteran’s namethe veteran’s name the VA file numberthe VA file number the date of the Board decision to be the date of the Board decision to be

reconsideredreconsidered the alleged obvious error of fact or law or the alleged obvious error of fact or law or

other appropriate basis for reconsiderationother appropriate basis for reconsideration

78

Motion for Reconsideration Motion for Reconsideration (Cont’d)(Cont’d)

Chairman may grant reconsideration:Chairman may grant reconsideration: Upon an allegation of obvious error of Upon an allegation of obvious error of

fact or lawfact or law Upon discovery of new and material Upon discovery of new and material

evidence in the form of relevant records evidence in the form of relevant records or reports of the service departmentor reports of the service department

Upon an allegation that an allowance of Upon an allegation that an allowance of benefits has been materially influenced benefits has been materially influenced by false or fraudulent evidenceby false or fraudulent evidence

79

Motion for Reconsideration Motion for Reconsideration (Cont’d)(Cont’d)

If the Chairman orders If the Chairman orders reconsideration:reconsideration: BVA decision is vacatedBVA decision is vacated Reviewed by a reconsideration Reviewed by a reconsideration

panelpanel Decides the case Decides the case de novode novo

80

Revision of Decision Based Revision of Decision Based on CUEon CUE

A successful CUE Claim “has the same A successful CUE Claim “has the same effect as if the decision had been made effect as if the decision had been made on the date of the prior decision” on the date of the prior decision” File at any time after decision becomes finalFile at any time after decision becomes final

If CUE is present in a VARO decision, each If CUE is present in a VARO decision, each CUE theory must be presented to and CUE theory must be presented to and adjudicated by the RO in the first instanceadjudicated by the RO in the first instance

If CUE is present in a BVA decision, file If CUE is present in a BVA decision, file CUE motion with the BVA in the first CUE motion with the BVA in the first instance instance

81

Revision of Decision Revision of Decision Based on CUE (Cont’d)Based on CUE (Cont’d)

Final BVA decisions are subject to Final BVA decisions are subject to CUECUE No time limit to fileNo time limit to file BVA’s disposition of the CUE motion BVA’s disposition of the CUE motion

is subject to CAVC reviewis subject to CAVC review CUE must be based on the record CUE must be based on the record

that was before the adjudicator at that was before the adjudicator at the time of original decision the time of original decision makingmaking

82

CUE Pleading CUE Pleading RequirementsRequirements

CUE pleading requirementsCUE pleading requirements Clearly and specifically allege Clearly and specifically allege

the error or errors of fact or lawthe error or errors of fact or law The legal or factual basis for The legal or factual basis for

such allegationssuch allegations Why the result would have been Why the result would have been

manifestly different but for the manifestly different but for the alleged erroralleged error

83

CUE Case LawCUE Case Law Benefit-of-the-doubt rule does not applyBenefit-of-the-doubt rule does not apply At the BVA, At the BVA, only oneonly one opportunity to opportunity to

raise an allegation of CUE challenging a raise an allegation of CUE challenging a RO or BVA decision on a particular claimRO or BVA decision on a particular claim

CUE does not exist merely because there CUE does not exist merely because there has been a favorable change in VA’s or has been a favorable change in VA’s or court’s interpretation of a statute or court’s interpretation of a statute or regulation after RO or BVA issued regulation after RO or BVA issued decision being challengeddecision being challenged

84

Three Kinds of CUEThree Kinds of CUE CUE in aCUE in a Finding of Fact: Finding of Fact:

Claimant must assert more than a Claimant must assert more than a disagreement as to how the facts disagreement as to how the facts were weighed or evaluatedwere weighed or evaluated

All of the evidence in the record as it All of the evidence in the record as it existed at the time of the challenged existed at the time of the challenged adjudication must support the adjudication must support the conclusion that the factual finding is conclusion that the factual finding is erroneouserroneous

85

Three Kinds of CUE Three Kinds of CUE (Cont’d)(Cont’d)

CUE in a Conclusion of Law: CUE in a Conclusion of Law: Must show that the relevant Must show that the relevant

“statutory or regulatory provisions “statutory or regulatory provisions extant at the time were incorrectly extant at the time were incorrectly applied”applied”

A breach of the duty to assist A breach of the duty to assist cannot be a basis for a CUE cannot be a basis for a CUE motionmotion

86

Three Kinds of CUE Three Kinds of CUE (Cont’d)(Cont’d)

CUE based on VA failure to CUE based on VA failure to sympathetically review the record sympathetically review the record to determine all claims reasonably to determine all claims reasonably raised by the record:raised by the record:

File a CUE claim challenging the RO File a CUE claim challenging the RO decision that should have, but failed decision that should have, but failed to infer and decide the claim for to infer and decide the claim for benefits for a particular disabilitybenefits for a particular disability

87

Success in a CUE Success in a CUE ClaimClaim

Once CUE is established, the prior Once CUE is established, the prior decision is “revised to conform to decision is “revised to conform to what the decision should have been” what the decision should have been”

VA then has a duty to assist prior to VA then has a duty to assist prior to assigning a disability evaluation for assigning a disability evaluation for the relevant retroactive period the relevant retroactive period

88

CAVC Review of a CUE CAVC Review of a CUE ClaimClaim

CAVC Review:CAVC Review: RReviews Board decisions on CUE under eviews Board decisions on CUE under

arbitrary, capricious, an abuse of arbitrary, capricious, an abuse of discretion, or otherwise not in discretion, or otherwise not in accordance with law standardaccordance with law standard

Certain aspects of a CUE decision Certain aspects of a CUE decision receive de novo reviewreceive de novo review

whether a claimant has presented a valid whether a claimant has presented a valid CUE allegation CUE allegation

whether a law or regulation was not whether a law or regulation was not applied or was applied incorrectlyapplied or was applied incorrectly

89

One Further One Further RestrictionRestriction

A CUE claim cannot be brought A CUE claim cannot be brought against a final, unappealed RO against a final, unappealed RO decision where the BVA has decision where the BVA has subsequently reopened the claim, subsequently reopened the claim, considered itconsidered it de novo, de novo, and denied and denied the benefits the benefits

In this case the CUE claim must be In this case the CUE claim must be lodged against the later BVA lodged against the later BVA decisiondecision

90

TOPIC F: TOPIC F: Attorney Attorney Representation of a Representation of a

VA ClaimantVA Claimant

91

Admission of Attorneys to Admission of Attorneys to Represent VA Claimants Represent VA Claimants

before the VAbefore the VA Two StepsTwo Steps

STEP 1STEP 1: Complete and send VA Form 21a : Complete and send VA Form 21a to the Office of the VA General Counsel to the Office of the VA General Counsel (VAGC). (VAGC). When When VAGC responds with initial VAGC responds with initial accreditation letter → you may begin to accreditation letter → you may begin to assist a claimant on a VA claimassist a claimant on a VA claim

STEP 2 TO CONTINUE STEP 2 TO CONTINUE ACCREDITATIONACCREDITATION: Complete three hours : Complete three hours of approved CLE within the one-year of approved CLE within the one-year period period andand then an additional three hours then an additional three hours for every subsequent two-year periodfor every subsequent two-year period

92

To be Recognized by VA as To be Recognized by VA as the Representative of a the Representative of a

Particular ClaimantParticular Claimant Complete, sign, and file a POA form (VA Complete, sign, and file a POA form (VA

Form 21-22a) Form 21-22a) May not designate a law firm as the May not designate a law firm as the

representativerepresentative POA stays in effect until specifically POA stays in effect until specifically

revokedrevoked Generally only one representative is Generally only one representative is

authorizedauthorized Newest POA “constitute[s] a Newest POA “constitute[s] a

revocation” of old POArevocation” of old POA93

Representative of a Representative of a Particular Claimant Particular Claimant

(Cont’d)(Cont’d) Split RepresentationSplit Representation Scope of the advocate’s representation Scope of the advocate’s representation

may be restricted may be restricted If POA not limited the VA will consider If POA not limited the VA will consider

the advocate to be the representative on the advocate to be the representative on all of the VA claimsall of the VA claims

Use VA Form 21-22a to limit the Use VA Form 21-22a to limit the scopescope

May cause some confusion at the May cause some confusion at the VAROVARO

94

Restrictions on Restrictions on Charging a VA Claimant Charging a VA Claimant

a Feea Fee Preparation of and filing a claim:Preparation of and filing a claim: No fee may be chargedNo fee may be charged

If an NOD is filed after June 20, 2007:If an NOD is filed after June 20, 2007: Attorney may charge a reasonable feeAttorney may charge a reasonable fee Post-6/20/07 NOD required to charge fees Post-6/20/07 NOD required to charge fees

for claim to reopen or claim for increase for claim to reopen or claim for increase in ratingin rating

Fees may be charged to prepare a CUE Fees may be charged to prepare a CUE claim; an NOD is not a prerequisiteclaim; an NOD is not a prerequisite

95

What is a VA Claims What is a VA Claims Folder?Folder?

Once a veterans files a claim, the VA Once a veterans files a claim, the VA creates a “claims folder” for the creates a “claims folder” for the veteranveteran

All submitted and VA-created materials All submitted and VA-created materials related to ANY of the veteran’s claims related to ANY of the veteran’s claims for benefits are included in the for benefits are included in the veteran’s (one and only) claims folderveteran’s (one and only) claims folder

96

Obtaining the VA Obtaining the VA Claims FileClaims File

Claimants are entitled to one copy of their Claimants are entitled to one copy of their claims file at no chargeclaims file at no charge

Claimant and/or advocate is able to Claimant and/or advocate is able to review the claims folder at the RO review the claims folder at the RO

Best way: certify-mail a FOIA request to Best way: certify-mail a FOIA request to RO for copy of all docs in C-file w/copy of RO for copy of all docs in C-file w/copy of VA Form 21-22a or Privacy Act waiverVA Form 21-22a or Privacy Act waiver

Pursuant to FOIA, the VA must determine Pursuant to FOIA, the VA must determine within 20 business days of receiving the within 20 business days of receiving the request whether it will provide a copyrequest whether it will provide a copy

97

Obtaining the VA Claims File Obtaining the VA Claims File (Cont’d)(Cont’d)

Pursuant to FOIA, the VA must Pursuant to FOIA, the VA must respond within 20 business days respond within 20 business days of receiving the requestof receiving the request

Advocate should treat a non-Advocate should treat a non-response within time period as a response within time period as a denial and appeal RO’s refusal to denial and appeal RO’s refusal to provide a copy of a claims file by provide a copy of a claims file by certified mail to the VA Office of certified mail to the VA Office of General Counsel in DC General Counsel in DC

98

How to Review a VA How to Review a VA Claims FileClaims File

Preliminary advicePreliminary advice Keeping track of relevant Keeping track of relevant

informationinformation Date-of-receipt stampsDate-of-receipt stamps Initial reviewInitial review Read the most recent decisionRead the most recent decision Check basic entitlementCheck basic entitlement

99

How to Review a How to Review a VA Claims File (Cont’d)VA Claims File (Cont’d)

Digging into the C fileDigging into the C file DD Form 214DD Form 214 Claims for benefitsClaims for benefits

Lay statementsLay statements Rating decisions, narrative, rating codesRating decisions, narrative, rating codes Notice of decisionNotice of decision Appellate issues, Notice of DisagreementAppellate issues, Notice of Disagreement SOC and SSOCsSOC and SSOCs Substantive appeal, Transcript of hearingSubstantive appeal, Transcript of hearing BVA decisionBVA decision

100


Second reviewSecond review Service Medical Records (SMRs)Service Medical Records (SMRs)

Entrance examinationEntrance examination Report of medical historyReport of medical history Clinical recordsClinical records Military medical reportsMilitary medical reports Discharge examinationDischarge examination

101


Medical Records – In GeneralMedical Records – In General Medical abbreviations and terminologyMedical abbreviations and terminology

““Impression”Impression” ““Rule out” – (R/O)Rule out” – (R/O) Handwriting issuesHandwriting issues

Post-Service Medical RecordsPost-Service Medical Records VA Examination reports and QTC VA Examination reports and QTC

examinationsexaminations VA outpatient (OPT) recordsVA outpatient (OPT) records VA Medical Center Reports (VAMC)VA Medical Center Reports (VAMC) Private Medical ReportsPrivate Medical Reports

102

TOPIC G: TOPIC G: General General Advocacy Tips for Advocacy Tips for

Attorneys Practicing Attorneys Practicing Before the VABefore the VA

103

Navigating the VA Claims Navigating the VA Claims SystemSystem

VA work creditsVA work credits Bias against lawyersBias against lawyers Instructing VA to send Instructing VA to send

correspondence only to youcorrespondence only to you Easy adjudicationsEasy adjudications Pressure to produce by VA Pressure to produce by VA

managersmanagers

104

Navigating the Navigating the VA Claims System VA Claims System

(Cont’d)(Cont’d) Institutional bias against certain types of Institutional bias against certain types of claimsclaims Alcohol and drug useAlcohol and drug use PTSD claimsPTSD claims TDIU claimsTDIU claims Claims for secondary service connectionClaims for secondary service connection Claims for delayed direct service connectionClaims for delayed direct service connection Evaluation of back conditions and mental Evaluation of back conditions and mental

conditionsconditions Where lay evidence is used to support a factual Where lay evidence is used to support a factual

conclusionconclusion

105

VA EmployeesVA Employees How to Interact with VA How to Interact with VA

EmployeesEmployees The last two numbers in the veteran’s The last two numbers in the veteran’s

claim numberclaim number Decision Review Officers (DROs) - the Decision Review Officers (DROs) - the

very informal VA regional office (RO) very informal VA regional office (RO) de de novonovo hearing hearing

Once your practice is established, if Once your practice is established, if possible, ask for a meeting with the possible, ask for a meeting with the “Service Center Manager”“Service Center Manager”

106

Documents

Representing Veterans Before the VA on Claims for Disability Benefits Presented by Bart Stichman National Veterans Legal Services Program