OVERVIEW OF THE VA SYSTEM

The Department of Veterans Affairs (VA) has two primary functions:

1. It provides medical care for veterans and some of their dependants. This division of the VA is the Veterans Health Administration (VHA). The VHA represents the largest part of the VA, with respect to employees and facilities. It is the largest health care system in the United States.

2. It pays benefits to Veterans. These benefits include compensation for service related disabilities, compensation to widows and families of veterans, and pensions to veterans or their widows who are defined to be “impoverished”. This division of the VA is the Veterans Benefits Administration (VBA).

The VA has the third largest operating budget in the federal government (behind Department of Defense and Social Security Administration). The VHA and the VBA are approximately equal in expenditures.

This seminar will relate primarily to the VBA and the processing of claims for VA benefits. There are nearly four million veterans and beneficiaries currently receiving VA compensation and pension benefits. However, this is only a small fraction of those who are eligible (some estimates put the number at less than 5%). It is estimated that nearly one-third of the U.S. population is potentially eligible for federal veterans’ benefits. Approximately five million determinations regarding benefits are made every year within the VA Regional Offices (VAROs).

There are 58 VAROs, at least one in each state. It is here where a veteran would apply for compensation.

The Board of Veterans Appeals (BVA) is the “final” adjudicative body of the VA. It is located in Washington, D.C., and has 56 Board Members, also known as (“Veterans Law Judges”). Note that the Veterans Law Judges are not Administrative Law Judges, and therefore they are not required to have the same rigorous training and certification as ALJs. The BVA or “Board” may consider new evidence that was not considered by VARO. Since 2007, attorneys may represent claimants before the BVA (and charge a fee).

The U.S. Court of Appeals for Veterans Claims (CAVC) was created in 1988. It was created by Congress as part of the Veterans Judicial Review Act of 1988 (VJRA). Before 1988, there was no mechanism of review of a BVA decision; such a decision then was truly “final’. Now, a veteran may appeal a BVA decision to the CAVC. The CAVC is an Article I court, which is composed of seven judges who are appointed for a 15-year term.

If a veteran desires to appeal from a CAVC decision, such an appeal of right would be filed in the U.S. Court of Appeals for the Federal Circuit, located in Washington, D.C. Leave to appeal from the Federal Circuit Court would be filed in the U.S. Supreme Court.

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REQUIREMENTS OF A VA DISABILITY COMPENSATION CLAIM

I. Definition of “Veteran” for Qualification for Disability Compensation

In order to qualify for VA disability compensation (disability pension will be discussed later), a “veteran” is defined as a person who served in the active military, naval, coast guard or air services, and who was discharged or released under circumstances other than dishonorable. 38 U.S.C. §101(2), 38CFR §3.1(d) (2006). Active service means full-time service, other than active duty solely for training.

II. Definition of VA Disability “Compensation”

VA disability compensation (“compensation”) is money paid to a veteran for an injury, disease or condition sustained during service in the military. This often is referred to as a “service connected disability”.

III. Elements of a Valid Claim for VA Service Connected Disability Compensation

A. Current DisabilityThe claimant (veteran) must have a current disability that is medically diagnosed. The disability must be current, i.e., it must exist at the time he files his claim, or while his claim is pending. If a veteran was injured or became ill while in the service, but that injury or illness no longer is a disability, the veteran is not entitled to compensation.

The standard to file a claim is “plausible”, which is a relatively low standard; this is not the same standard necessary to have the claim granted. Once a veteran files a plausible claim, the VA has a “duty to assist” the veteran in the development of the claim. See The Veterans Claims Assistance Act (VCAA), 38 U.S.C.A. § 5107(a) and 38 C.F.R. §3.157 (2005).

B. Service ConnectionThere must have been a precipitating disease, injury or event which occurred in the service. There must be evidence of this in the military service or medical records, or through some other means. A disability will not be considered service connected if it pre-existed service. Any condition that is found to be the result of willful misconduct, e.g., alcohol or substance abuse disorder, or illness caused by smoking, will be considered by the VA not to be service connected. There also are certain conditions which are, by virtue of the condition, considered to be prima facie not service connected, e.g., personality disorder, refractive vision error, dental condition. There are, however, two important presumptions which can help the veteran and limit the VA’s ability to deny the claim on the basis of a preexisting condition:

1. Presumption of Soundness. The veteran will be presumed to have been in good health when he or she entered the service unless there is clear evidence to the contrary. 38 U.S.C.S. § 1111; 38 C.F.R. § 3.304(b)(2005).

2. Presumption of Aggravation. If a veteran is treated in service for a condition which preexisted service, the condition will be presumed to have been aggravated by the service, unless there is clear evidence to the contrary. 38 U.S.C.S. § 1153; 38 C.F.R. § 3.306 (2005)

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IV. Nexus

There must be a nexus between the two elements of a valid claim, i,e., between the current disability and the condition or event that occurred during military service. That nexus is demonstrated by medical evidence or medical opinion that links the current disability to the in-service precipitating disease, injury or event.

The standard of proof for the nexus is “preponderance of the evidence”, but the veteran receives the “benefit of the doubt.”. Thus, a medical opinion must indicate that it is at least “as likely as not” that the veteran’s disability is connected to military service. 38 U.S.C. § 5107(b).

A. One-year Presumption. A claim filed within one year of service discharge entitles the member, upon the grant of a service connection, to an effective date of the day after separation. A veteran can benefit from this presumption, as long as the condition manifested itself during the first year after discharge (or while in the service). Two exceptions to the one year presumptive period are the presumptive periods for tuberculosis (3 years after separation) and multiple sclerosis (MS) (7 years after separation).

B. Continuity of Symptoms and Treatment (required when condition is not chronic). Even if a claim is filed more than one-year after discharge from the service, if the veteran can provide evidence that the condition which occurred in the service has been ongoing and that he has been treated for it, that continuity of symptomatology should be determined to be an adequate nexus.

C. Doctrine of Benefit of the Doubt. When there is an approximate balance of positive and negative evidence on the merits of a particular issue, the claimant is to be given the benefit of the doubt when resolving that issue. 38 U.S. C. A. § 5107. Therefore, if a doctor opines that it is “as likely as not” that the current disability is related to an event which occurred in the service, the nexus will be sufficient, applying the doctrine of benefit of the doubt. If there are two conflicting medical opinions, the veteran’s advocate should point out the superiority of the opinion in the veteran’s favor (e.g., credentials of the medical expert; testing conducted); however, if both opinions have equal weight, the benefit of the doubt doctrine mandates that the veteran’s position should prevail.

V. Filing the Claim

Any statement by a veteran to the VA that he or she might be entitled to service-connected disability benefits should be treated as an informal claim and trigger a response from the VA. Nevertheless, a formal written claim (VA Form 21-526) should be filed within a year of the informal claim. A claim can be filed for determination of a service-connected disability or for an increased rating. A claim for a disability which previously was denied can be reopened if the claimant obtains new and material evidence.

The claim should be relatively broad, rather than specific, when describing the disability. The VA has a duty to “determine all potential claims raised by the evidence, applying all relevant laws and regulations.” Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). The VA will deny a claim designated as a specific condition if the veteran has misstated the proper medical terminology. If a specific claim is granted, the VA will limit the claim only to the

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specific condition alleged. Therefore, it is better for a claimant to claim he is experiencing a disabling and painful back condition, rather than a condition of the lumbar spine.

The claim is filed in the Regional Office (VARO). It is received by the VARO’s authorization unit of the adjudication division. The authorization unit first examines basic eligibility issues, e.g., it verifies the veteran’s dates of military service and type of discharge. If basic eligibility is established, the authorization unit begins to develop the evidence necessary to prove the claim. For example, the examiner in the authorization unit may try to obtain medical or service records that are not in the veteran’s claims file. The examiner also may write to the veteran to request or clarify information, or to request additional evidence. Once basic eligibility requirements are determined to have been met and most of the necessary evidence has been obtained, the claim is transferred to the rating activity of the VA.

The vast majority of veterans are not represented by counsel at this level, because lawyers are statutorily prohibited from accepting fees until the claim is denied. Typically, if a veteran needs assistance with filing his claim, such help could be obtained from VA employees or, more commonly, from Veteran Service Organization representatives called Veterans Service Officers (VSOs).

The average length of time for processing a claim varies with the VARO. Claims are said to be expedited for veterans who are homeless or who are terminally ill, and in some instances, for veterans of World War II.

VI. Effective Date.

If the claim is granted, the veteran generally will be entitled to benefits for the service connected disability from the date of the most recent claim filed for that disability. Therefore, it is very important that at least an informal claim be filed as soon as possible when a veteran learns that a disability may be service connected, or when he or she obtains new additional evidence in support of a claim which has been denied. If a claim is filed within a year of the veteran’s discharge from service, the discharge date will be the effective date of the claim.

VII. Reopening a Claim

If a veteran’s claim was denied and the appeal period has expired, the veteran may reopen the claim by submitting “new and material evidence”. The veteran must meet all of the requirements for filing a claim and, additionally, he must submit evidence that never has been submitted previously in connection with this claim (“new” evidence) and that is, by itself or when considered with previous evidence in the record, related to a fact that has not yet been established and that is necessary to substantiate the claim (“material” evidence). New and material evidence cannot be cumulative or redundant of the evidence in the record at the time of the last final denial of the claim(s) sought to be reopened. The new and material evidence must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a)(2005).

The effective date of the reopened claim will be the date of the reopening. The claim will not be retroactive to the date the original claim was filed.

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VI. § 1151 Claims

A different type of service connection occurs when a veteran is injured as a result of being treated at a VA medial facility, or while participating in a VA Vocational Rehabilitation program, provided that the injury occurs because of substandard care. See 38 U.S.C. § 1151.

The substandard (or “negligent”) care also may result in a malpractice claim under the Federal Tort Claims Act (with the applicable statute of limitation), as well as a claim for service connected disability compensation. [Note that the money received in an FTCA tort action will offset the compensation received for the disability claim.] A veteran can pursue either a § 1151 claim, a FTCA action, or both.

There is no statute of limitations that applies to a § 1151 claim; such a claim can be filed at any time. An FTCA action will be time barred after two years from the date of the occurrence.

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HOW THE VA RATES DISABILITIES

After it is determined that the veteran has established a service connected disability, the VA will issue a rating (in the form of a percentage from 0% to 100%) for the disability which was granted. The rating is determined from a schedule based on the average earnings limitation connected with the level of the disability.

The VA, under the authority of Congress, developed a schedule to rate disabilities. The ratings are based upon the statistically average impairments of earning capacity resulting from the respective injuries or illnesses. Schedule for Rating Disabilities (SRD or Ratings Schedule), 38 C.F.R. Subpart B. 4.46 et seq.

Each rating then is correlated with a specific monthly payment.

I. Levels of Disability

An evaluation by the VA which results in a rating of 0% is noncompensable, i.e., the condition was determined to be service connected, but its disabling effect is so minor that no monetary compensation will be awarded. An example of such a condition might be a very mild hearing loss. An evaluation resulting in a 100% rating is said to be a total disability. The SRD is comprised of ten grades of disability. Under the schedule, a condition such as an ulcer, a hearing loss, or diabetes would be rated based on the severity of the condition. The degree of disability increases as the severity of the symptoms becomes greater.

The rating is based on medical records and the veteran’s statements about his or her symptoms. The VA must base its rating on a recent, complete medical examination. The examination must contain enough detail to support the conclusions and diagnosis it provides. Thus, it is important that the veteran explains to the examining physician in detail how his or her symptoms affect his daily life and ability to work. The veteran should be encouraged to provide a written statement to the examining physician so that he does not forget anything.

The protocol for a medical examination to determine the degree of a disability can be found in the VA clinician’s guide. If the veteran is being evaluated by a private (non-VA) physician, the evaluation worksheet for the particular disability being evaluated, taken from the VA clinician’s guide, should be provided to the examining physician so that the evaluation will be conducted consistent with the protocol established by the VA. When there is a question of which one of two or more evaluations should be relied upon to support a rating, the VA is required to give the benefit of the doubt and assign the higher of the two evaluations (provided that the evaluation to be relied upon contain detailed support for the diagnosis).

II. Total Rating for Multiple Disabilities

The overall percentage of disability is calculated by using the formula contained in the “Combined Ratings Table” to combine the individual ratings. See 38 U.S.C. § 1155; 38 C.F.R. § 429. The overall rating is not computed by simply adding the ratings attributed to each disability.

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All disabilities, including multiple disabilities arising from a single disease or injury, are rated separately and then the ratings are combined under the “Combined Ratings Table” formula. A veteran cannot be compensated more than once for the same disability. However, one injury may result in more than one disability, e.g., a gunshot would to the leg may result in a painful scar, muscle group damage, fracture residuals and neurological residuals. Symptom overlap cannot result in compensation more than once for the same symptom, regardless of the cause, but different symptoms resulting from the same injury may be compensated.

A. Amputation Rule

The combined ratings for a disability of any extremity will not exceed the rating for the extremity if it had been amputated at the level at which the disability is located.

B. Bilateral Factor Rule

When a compensable disability exists because of bilateral disease or injury to both arms, both legs, or paired skeletal muscles, the individual disability ratings for the bilateral disabilities will be combined as usual, and then 10% of the value of the combined rating will be added.

III. Total Disability Individual Unemployability (TDIU)

Under the SRD, the highest rating of 100% means that the veteran is totally disabled. Under 38 C.F.R. § 4.16, a total disability rating may be assigned to a person who fails to meet the 100% rating, but nevertheless is unable to secure or maintain substantially gainful employment. TDIU will be granted when the disabled veteran is, in the judgment of the ratings agency, unable to secure or maintain a substantially gainful occupation as a result of service-connected disabilities. The VA is not allowed to consider a veteran’s non-service-connected disabilities when deciding whether to grant TDIU.; the VA must find that the veteran is unemployable due to his service-connected condition standing alone.

A grant of TDIU substantially increases the veteran’s monthly benefit. The minimum disability rating with which a veteran generally can qualify for TDIU if the veteran has only one disability is 60%. If the veteran has more than one rated disability, he must have a total disability rating of at least 70%, with at least one disability rated at 40% or greater.

If the veteran does not meet the minimum ratings levels described above, he or she can apply for TDIU on an extra-schedular basis through the VA Central Office. The veteran must demonstrate that his or her case presents exceptional or unusual factors that render the application of the SRD impractical or inappropriate. A veteran can request an extra-schedular rating for any disability, not solely for TDIU, Extra-schedular ratings allow veterans to obtain greater compensation than they would receive under the SRD. Such ratings are granted only in unusual cases, and are very hard to obtain.

A claimant should complete VA form 21-8940 to apply for increased compensation based on unemployability. A claimant also can request consideration for TDIU by sending a letter which states his request.

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IV. Special Monthly Compensation

If a veteran’s disabilities are very severe (e.g., a blind paraplegic), a rating in excess of 100% is available. This special rating is referred to as special monthly compensation. Only very few service-connected disabled veterans are eligible for this benefit.

IV. Applying for a Ratings Increase

A veteran can apply for a ratings increase at any time if he has medical support that the severity of the service connected condition has increased. Thus, it is most important to establish a service connection as early as possible, even if the rating is low. Conditions often worsen over time (the veteran’s age cannot be considered).. If and when the condition worsens, the rating can be increased.

When a veteran believes that his service-connected condition has become more disabling, he should submit an increased-rating (IR) claim. The VA then must provide an examination of the condition to determine its current severity. The veteran can submit a private treating physician’s report in support of his IR claim.

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PRESUMPTIVE AND SECONDARY SERVICE CONNECTED DISABILITIES

I. Presumptive Conditions

There are some medical conditions that are “presumptively” service connected by virtue of a VA regulation stating that to be the case, and the veteran does not have to submit evidence of any nexus. In these cases, the current disability is a condition that did not manifest itself during service, but it is presumed to have been caused by, or connected to, something that happened during service. For example, if a veteran was exposed to Agent Orange in Vietnam and later develops specific types of cancer, including prostate cancer, or diabetes, the VA will presume that there is a nexus between the current condition and the exposure in service. This also is true of veterans who can prove that they were sufficiently exposed to ionizing radiation, such as certain A-Bomb tests after World War I. See 38 C.F.R. § 3.307-3.309, 38 C.F.R. § 3.311, 38 C.F.R. § 3.313(b). It is possible for the VA to rebut the presumption if there is evidence that it is more likely than not that the disability preexisted or was caused by some non-service connected factor.

The VA lists nearly 50 chronic diseases that are presumptively service connected. Some of the diseases have a presumptive period attached. For other conditions, the presumptive period is open ended. Some of the conditions apply only to veterans with certain service experiences, e.g., Agent Orange exposure in Viet Nam. To be eligible for compensation under a presumption, the veteran must have served on active duty for at least 90 continuous days. If the veteran can demonstrate that the disease was severe enough to warrant a compensable disability evaluation of 10% or higher within the presumptive period, he or should be granted service connection for the disability.

II. Secondary Service Connection

When the current disability is the result of another medical condition which is a service connected injury or illness, the current disability can be compensable as a secondary service connected disability. Secondary service connection can be established both where a service connected condition contributes to the creation of a new disability, or where a service connected disability aggravates a non-service connected condition. A medical opinion is necessary to prove a secondary service connection. In order to establish a secondary service connection, the examining physician, or other medical expert, will need to provide an opinion that it is as likely as not, or more likely than not, that the claimed disability was caused or aggravated by the service connected condition.

An example of this is a veteran who has an amputated foot because of a service connected injury. He develops a back condition several years after he is discharged from the military. If a doctor, preferably an orthopedic specialist, confirms that the back condition more likely than not resulted from the altered gait caused by the amputated foot, then the back condition should be rated as a compensable secondary service connected disability. Other examples of possible secondary service connected conditions are alcoholism and drug abuse. If the veteran acquired a psychological condition such as clinical depression or PTSD while in the service, and then began to drink alcohol or use drugs to self medicate that condition, the alcoholism or drug abuse, which otherwise would not be compensable, may be considered to be a compensable secondary service

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condition. Similarly, someone who becomes addicted to drugs taken for pain for a combat injury may be able to demonstrate that the drug addiction is compensable as a secondary service connected condition. Secondary service connected conditions often are tricky and difficult to prove, but may, in some instances, be worth pursuing.

Secondary service connection also can be granted if a service connected disability makes a non-service connected disability worse. For example, non-service connected hypertension (high blood pressure) is exacerbated by a service-connected anxiety disorder. The increase in the hypertension can be considered to be service connected. If the hypertension then causes a heart condition, the heart condition can be service connected.

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SPECIAL CHALLENGES OF PTSD AND MENTAL HEALTH CLAIMS

I. What is PTSD?

Posttraumatic Stress Disorder (PTSD) is a mental health response to trauma, including, but not specific to, combat exposures. PTSD can affect any or all of the cognitive, emotional, social and occupational domains. It is classically a waxing and waning illness. While recovery from the acute form may occur in the months following onset, most studies suggest that PTSD is more likely to be manifested in the chronic form. Military-related PTSD may be more complex and more persistent than PTSD related to other traumas. Diagnostic criteria taken from the American Psychological Association Diagnostic and Statistical Manual (DSM) IV define PTSD as occurring in response to a traumatic event in which both of the following have been present:

The person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and

The person’s response involved intense fear, helplessness, or horror.

The traumatic event is persistently reexperienced and there is persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness. Persistent symptoms of increased arousal include:

Difficulty falling or staying asleep;

Irritability or outbursts of anger;

Difficulty concentrating;

Hypervigilance; and

Exaggerated startle response

PTSD causes clinically significant distress or impairment in social occupational, or other important areas of functioning.

II. Proving the Requirement of Service Connection for PTSD

The VA requires that the claimant demonstrate “stressors” that caused the PTSD.

A. Combat Related Stressors

The veteran must demonstrate that he or she was involved in combat, and experienced stressors sufficient to cause PTSD, through items such as:

Veteran’s statement about his or her experiences. The VA must be satisfied that such statements are credible and consistent with the circumstances and hardships of service

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Service records

Military decorations or citations

Evidence that the base or area was exposed to hostile fire

Evidence that the soldier received hazardous duty pay

Buddy statements regarding combat activities

B. Non-Combat Related Stressors

The veteran must provide credible evidence of the traumatic event. Such events would include a physical sexual assault or series of such assaults, witnessing of a suicide, murder, sexual assault or other act that would involve the threat of death or serious injury. The veteran can produce evidence that the event caused a significant change in behavior that is reflected in the military records, even if the event was not reported by the veteran.

III. Other Mental Disorders

PTSD is just one mental disorder that is acquired during military service. Veterans often present with other mental disorders including depression, anxiety or panic disorder, bipolar disorder, or even psychosis that were caused or aggravated by military service. It is critical that a nexus to the manifestation or cause while on active duty in the military be demonstrated. This is demonstrated by a medical opinion. If the condition preexisted enlistment in the military, then there must be medical evidence that it was aggravated during, or because of, military service. A preexisting personality disorder generally will be considered not to be service connected, unless there is evidence that the characteristics of the disorder changed substantially during, or as a result of the service, becoming a disabling condition and generating a diagnosis different from “personality disorder”.

Mental retardation and personality disorders are considered to be congenital or developmental defects, rather than diseases or injuries for disability compensation purposes. To present the best possible case, advocates should ask a psychiatrist to consult the DSM-IV diagnostic criteria and explain in a medical statement why the current condition should not be diagnosed as a personality disorder. It may be possible for a veteran to obtain service connected disability compensation even if he has a congenital defect, if there is a medical opinion that another mental disorder and diagnosis (such as PTSD or clinical depression) is superimposed upon the preexisting condition.

IV. Rating Mental Disabilities

In determining the severity, and therefore the rating, of a mental disability, the rating agency will consider “the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission.” The Global Assessment of Functioning (GAF), is a diagnostic instrument used to evaluate the veteran’s overall psychological, social and occupational functioning. GAF scores range from 1 to 100. The veteran should be evaluated by a psychiatrist or psychologist, and also should be evaluated

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by a vocational expert (e.g., vocational rehabilitation counselor or vocational psychologist), so that a determination can be made about the effects of the service-connected mental disability on the veteran’s ability to obtain or maintain employment. The vocational expert should be aware of the rating criteria applied by the VA.

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REVIEWING THE CLAIMS FILE

I. Requesting a Records

If a veteran ever has filed a claim with the VA, he or she will have a claims file (C-file). The C-file should be requested from the VARO as soon as possible once you agree to investigate the veteran’s claim; medical records, and service personnel and medical records, also should be requested. The veteran is entitled to one free copy of his or her C-file (although the VA often does not charge for an additional copy requested by counsel).

The following forms should be used to obtain the initial records of the veteran::

VA Form I80 (service records)

VA Form 10-5345 (VA medical records

VA Form 3288 (claims file)

A VA Form 21-22a must be filed in order to appear as the Veteran Claimant’s representative If the claim is in the BVA, then the letter and forms should be sent to the BVA. The BVA then will send the C-file back to the VARO for copying.

It may take 90 days or more to receive a C-file. Generally, you can make arrangements to go to the VARO to view the file prior to it being copied and sent to you Every 30 days after you submit your request for the C-file, resubmit the request. Consider submitting the request by fax and mail, and augmenting your request with a phone call.

II. Reviewing the C-file

Keep the C-file intact, in a separate file or notebook. Scan it or make copies if you want working copies. Do not intermingle the C-file contents with documents the veteran gives you or that you receive from other sources.

A. Determine Relevant Dates

Upon receipt of the file, always skim the entire file to determine whether there are any pending dates or upcoming deadlines of which you are unaware (e.g., date for filing Notice of Disagreement, VA 9, Notice of Appeal). Docket all relevant dates.

B. Sort the File

The file likely will not be in any order, chronological or otherwise. Organize it in a way that makes sense to you. Generally, all VA decisions should be grouped together in chronological order. Consider putting medical records from each source, as well as correspondence, in chronological order.

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C. List the Identified Issues

From discussions with your veteran client, and perhaps other information obtained, you should know what the general issues are, e.g., denial that a particular condition exists or is disabling, denial of service connection for a particular condition or conditions, rating for a particular condition or conditions, entitlement to Individual Umemployability. By listing the issues, you can reduce the time for your initial claims file review by focusing on evidence that relates to the issues, and not on issues that already have been favorably resolved or are not significant.

D. Carefully Read and Analyze All VA Ratings Decisions (and BVA Decisions, if Any)

When reading and analyzing the decision(s), list all evidence upon which the writer relied, as well as any evidence, of which you are aware, that is not mentioned. List the bases of the unfavorable decision(s), so that you can review the file while looking for evidence that contradicts the bases of those decisions.

E. Annotate the C-file

Develop a method for annotating the C-file. Some people use Case Map; some use a Word document to make comments; some Bates stamp the C-file and use a form to record pages and evidence; some scan the file and annotate an Adobe copy with bookmarks and comments; some use handwritten notes and coding systems. The way you annotate the file primarily is a matter of personal preference and trial and error. Find a method and system that works for you.

F. What to Look for When Reviewing a C-file

The list of what to look for when reviewing a C-file is virtually inexhaustible. However, the following are some things to consider:

Are there items that are not in the file that the veteran told you he has submitted?

Are there items to the which a decision refers that are not in the file (e.g., a medical examination report)?

Did the VA provide a medical examination to evaluate the claimed disability? [This reflects the “duty to assist”]

If so, review the VA C & P (Compensation and Pension) medical examination report carefully. Did the examiner note whether he or she reviewed the C-file, including reports of other medical examinations, or whether the C-file was available for review?

Did the VA examiner(s) examine the veteran with respect to all claimed disabilities, and did the examiner address each disability? Was the examination adequate? Did the examination follow the VA protocol, as set forth in the VA Examination Worksheets?

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Did the VA properly interpret the C & P evaluation in its decision? Does the decision refer to, and consider, any parts of the report favorable to the veteran?

Is there any evidence in the C-file that is favorable to the veteran that the VA did not consider in its decision?

Did the VA obtain all records of which it was, or should have been, aware before issuing a decision? This might include records from private medical evaluators or treaters, employers, the Social Security Administration, Vocational Rehabilitation, etc. [This reflects the “duty to assist”]

Are there relevant issues that are not addressed in VA decision(s)?

Is there a basis for denial, substantiated by the evidence, for every claim that has been denied?

Did the VA communicate with the veteran about what evidence was needed to substantiate each claim?

Does the VA decision(s) correctly quote and cite to the evidence on which it relies, e.g., medical evaluation reports?

Did the VA ignore any evidence favorable to the veteran? Carefully read all medical records, including clinical notes. If you cannot decipher handwriting or symbols, ask someone to assist you or contact the physician’s office.

Did the VA properly apply presumptions (e.g., presumptive conditions or periods, presumption of soundness, presumption of aggravation)?

Are the Service Medical Records (SMRs) in the file? If not, what attempts were made to get them? [This reflects the duty to assist and the VA is obligated to give notice to the veteran of any information that it is unable to obtain.].

If the file contains Orders of Remand from the BVA, did the VARO comply with the Orders?

Does the Decision(s) consider all potential claims that reasonably can be inferred from the claim filed?

If the veteran applied for social security disability benefits, is a copy of the veteran’s Social Security Administration file, including the independent examination report, in the C-file?

Did the veteran receive notice of everything he should have gotten?

Are there indications that the veteran did not appear for any medical or psychological examinations? If so, is there evidence that the veteran received notice of the examination?

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Did the VA follow the case law that was applicable at the time of the decision?

Are there any clear and unmistakable errors (CUEs) in any final RO or BVA decision?

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GATHERING EVIDENCE TO SUPPORT THE CLAIM

I. VA’s Duty to Assist

The VA has a duty to assist the veteran in supporting his or her claim. That means that the VA must obtain the veteran’s Service Medical Records and any other relevant medical records. If the veteran’s current medical condition, including existence of a current disability, is at issue, the VA must provide the veteran with a physical examination. The examination must result in a readable report that renders a medical conclusion. This must be done for each of the veteran’s claimed disabilities. Despite the VA’s duty to assist, the veteran or veteran’s advocate should take it upon himself to gather records and other evidence to support the veteran’s claim.

II. Initial Records Requests

In addition to requesting the C-file from the VA (if the veteran ever filed a claim), the following records should be immediately obtained or requested:

Obtain from the veteran a copy of his military discharge (DD 214) so that you can verify dates of service and conditions under which the veteran was discharged.

Obtain and copy all records that the veteran has accumulated related to his military service and his claimed disability.

If the veteran has filed a claim for social security disability, have him or her go to the Social Security Administration office and get a copy of his file, including any evaluations that it might contain. (It generally is quicker to have the veteran obtain his own social security file than to request it directly, especially if there is a pending claim.)

Obtain signed HIPPA-compliant medical releases from the veteran for each private hospital, doctor, or other medical or mental health facility at which he has received evaluation or treatment at any time for each claimed disability or condition (including treatment for some additional or aggravating injury or situation such as an automobile accident or fall), and request all medical and mental health records, including treatment notes.

Obtain signed releases from the veteran for requesting all service records of the veteran, including service medical records, and request the records. Note that inpatient medical records are stored separately from outpatient medical records. A request for military records needs to specifically identify the location and time period of each hospitalization.

Obtain signed releases from the veteran for employment records from each employer for whom the veteran worked so that you can evaluate whether his claimed disability caused him any problem in the work place. When requesting records from an employer, ask for time and attendance records, as well as the employee’s personnel file.

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If the veteran has filed a workers’ compensation claim, request the veteran’s file from the Bureau of Workers Compensation.

III. The Compensation & Pension (C & P) Examination

Perhaps the single most important event that will determine the success of the veteran’s claim is the C & P Examination. This is an examination by a VA physician to which the veteran must subject himself. The purpose of the examination is to answer questions relevant to whether a disability currently exists, whether such disability is service connected, and the severity of the disability (which will affect how it will be rated).

Prior to the C & P Examination, read and review with the veteran the relevant diagnostic code and examination worksheet from the VA Clinician’s Manual. Talk to the veteran about addressing with the examiner all of the points addressed by the diagnostic code and examination worksheet. Review with the veteran important issues that might arise at the examination, such as:

Employment history and retirement

Substance abuse vs. self-medication

Lack of obtaining treatment or gaps in treatment

Symptom continuity

Any specific concerns stemming from prior VA decisions or remand instructions

Anything from prior medical examination reports that is unfavorable to the veteran

IV. Medical Experts

It generally is to the veteran’s advantage to have an independent medical professional conduct a private medical examination or a records review. A medical opinion is necessary to establish a current disability and to establish the nexus of the disability and a service connection. A medical opinion must expressly connect the veteran’s disability or death to the occurrence or aggravation of a disease, injury or event that occurred in the service. An independent record review may yield the necessary opinion between the disability and the injury, illness or condition that occurred during service. The examination or records review should be conducted by a physician or mental health professional who is expert in the area of the claimed disability.

The veteran generally covers the cost of such an evaluation. If the veteran cannot afford to pay for such an examination, the pro bono attorney may be willing to cover the cost (an agreement can be made to recoup the cost if the veteran is granted benefits). It is possible to locate a medical professional who is willing to provide an examination or file review free or at a reduced rate to a low income veteran.

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V. Lay Evidence

Evidence from lay witnesses (non-experts) can be used to prove anything that does not require specialized knowledge or training. Lay evidence is considered to be competent “if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.” 38 C.F.R. § 3.159(2). A lay witness can be a “buddy” from the military, a commanding officer, an employer, a coworker, a family member, a friend or an acquaintance who has knowledge about some fact or circumstance relevant to the veteran’s claim. The lay witness should provide a statement, preferably in the form of a sworn affidavit, that can be sent to the VARO (or BVA if the claim is on appeal). Lay statements can be important evidence of symptoms manifested by the veteran (e.g., how the veteran appeared and behaved before he or she entered the military vs. when he or she returned), stressors the veteran experienced, the veteran’s pre-military condition, etc.

Lay opinions do not carry any weight regarding nexus. However, lay testimony is sufficient to establish service connection in certain circumstances. A comprehensive lay witness statement is critical in many cases, particularly with respect to continuity of symptomatology or noted changes in behavior which became chronic.

VI. Excerpts from Medical Textbooks, Treatises or Scientific Journal Articles

Excerpts from medical textbooks, treatises or scientific journal articles (and, to a lesser extent credible internet and magazine articles) can be submitted as evidence to support a service connection. Items in medical journals, treatises or textbooks also may be useful in educating medical professionals about the link between military service and certain medical or mental health conditions.

VII. Historical Sources

Such sources may be helpful in demonstrating that certain activities were occurring in a given location during a specified time period when the veteran was present. For example, that combat occurred, or that some classified operation (for which records may not be easily obtained) occurred in a particular location during a specified time period.

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RESPONDING TO A RATINGS DECISION DENYING A CLAIM OR OTHERWISE UNFAVORABLE IN WHOLE OR IN PART

I. Filing the Notice of Disagreement (NOD)

If a veteran disagrees, in whole or in part, with the Ratings Decision received, he (or an advocate on his behalf) must file a Notice of Disagreement (NOD). The NOD can be a simple letter or other written statement. It should clearly state the findings and conclusions of the Ratings Decision with which the veteran disagrees, and should be as detailed as possible regarding the reasons for disagreeing with the decision. The NOD must be received at the RO.

The veteran has one year from the date of the Ratings Decision to file a NOD. The veteran may receive a communication from the Regional Office stating that, if the veteran does not respond to the Ratings Decision within 60 days, his or her file will be shelved. However, regardless of what such a letter states, the veteran has one year from the date of the Ratings Decision to file an NOD.

II. Options for Review of the Ratings Decision

The veteran may choose from two options:

A. Review at the RO by a Decision Review Officer (DRO)

The DRO, who is alleged to have more training or experience than the initial rating specialist, will review the claim de novo. The veteran has the right to request a hearing before a hearing officer when he or she files the NOD. That hearing is recorded and transcribed, and becomes part of the C-file. The claimant veteran always can submit additional evidence at the RO (and BVA) level. Briefs or memoranda in support of the claim also can be submitted. A request for review by a DRO does not waive the right to appeal an unfavorable DRO decision to the BVA.

If additional evidence which is “new” and “material” becomes available (from either the VA or the veteran), that new evidence must be considered by the VA and a new decision must be issued. Such initial evidence must be received at the RO while the claim is pending there.

B. Appeal to the Board of Veterans Appeals (BVA)

The claimant may appeal directly to the BVA after submitting the NOD (without seeking DRO review). Or the claimant may request a DRO review and, if he or she receives an unfavorable DRO decision, then can appeal to the BVA.

If the veteran chooses to appeal directly to the BVA (this can be indicated in a letter or in a response to the form generally provided with the Ratings Decision), or if the decision of the DRO is unfavorable, the RO will issue a Statement of the Case (SOC). [The SOC may be generated in response to the NOD even if the veteran has selected a DRO review, but in Michigan, that generally does not occur.] The SOC looks very much like the Ratings Decision, but will be captioned “Statement of the Case”. The veteran must file a formal appeal 60 days from the date on the cover letter that accompanies the SOC. If additional evidence becomes

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available (either from the veteran or the VA) after the Statement of the Case is released, a Supplemental Statement of the Case (SSOC) is required.

A formal or substantive appeal to the BVA is effected by filing a VA Form 9. This form must be filed as the final step in moving the case out of the RO and to the BVA. The VA Form 9 should identify specifically what aspects of the Ratings Decision the claimant is appealing. The claimant should indicate on the VA Form whether he is requesting a hearing before the BVA.

III. What Happens at the BVA

After receiving the VA Form 9, the RO “certifies” the appeal to the BVA. The claimant can submit new and material evidence to the BVA. Except in unusual circumstances, it may present such evidence only within the 90 days following the certification of the appeal to the Board or at a hearing before the Board. Any new evidence submitted to the BVA in that manner must be accompanied by a statement either waiving RO review or requesting that the RO consider the new evidence. If the veteran asks the RO to consider the new evidence, the RO must issue a Supplemental Statement of the Case (SSOC). A case may receive a favorable decision in a SSOC, thus mooting the appeal to the BVA if the veteran agrees to withdraw the appeal. The claimant also can submit briefs or memoranda to the BVA setting forth legal or factual arguments in support of its NOD, and in opposition to the portions of the Ratings Decision which are being appealed.

The BVA can order its own medical opinion if it desires to do so. However, if an independent medical opinion is obtained by the BVA, the veteran claimant must be given the opportunity to review it, respond to it or comment on it, and submit responsive evidence (e.g., a responsive medical opinion).

The veteran’s C-file is retained at the RO until shortly before (generally two or three months) the BVA considers the appeal. Shortly before deciding the case, the BVA sends a final letter to the claimant, or claimant’s counsel, asking that any final additional argument or evidence be submitted.

A. Hearing Before the BVA

Claimant can request a hearing before the BVA, during which he or she may appear with or without counsel. Witnesses may testify, and additional evidence may be presented (if the veteran agrees to waive RO consideration of new evidence) at the hearing. [If the veteran does not waive RO consideration of new evidence, the matter will be sent back to the RO for another SSOC.] The veteran can request that the BVA hearing be conducted in one of three ways:

A hearing conducted at the BVA in Washington, D.C. (Cost obviously will be a factor.)

A hearing conducted at the RO by a “travel board” of the BVA. (This may extend the time for a decision.)

A videoconference hearing held at the RO via videofeed to the BVA. (Despite perceived drawbacks, this method is being used more and more frequently.)

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B. Decision of the BVA

The BVA’s decision is similar to a Rating Decision or SOC in its form. Like the Rating Decision and SOC, it sets forth “Reasons and Bases” for its decision, and concludes with a decision regarding the claim.

The BVA can:

Grant the claim, either in whole or in part (essentially reversing the RO’s decision)

Deny the claim (essentially affirming the RO)

Remanding the claim for further development (this is a frequent result)

If the BVA rules in the veteran’s favor, the case is sent back to the RO for calculation and payment of benefits, including retroactive benefits.

The claimant has 120 days (statutory requirement) from the date of the BVA decision to appeal the decision to the CAVC. Failure to file within that time generally results in the waiver of the right to appeal and the claim “dies”.

The average time for a BVA decision from the date of filing the VA Form 9 is two and a half years. The veteran should monitor the process in order to assure that the appeal has been certified and docketed and that it does not become “lost”.

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ANALYZING A BVA DECISION AND APPEALING TO THE CAVC

A BVA decision to grant or deny an appeal, in whole or in part, is a “final” decision. Upon receipt of the decision, the Claimant has various options:

File a motion for reconsideration with the BVA

Reopen the claim at the RO with new and material evidence (time will begin to run at the reopening, as if it were a new filing)

Appeal to the CAVC

Appeal to the CAVC and also reopen the claim with new and material evidence at the RO

Claim that the BVA decision (or a decision of the RO) contains a clear and unmistakable error (CUE)

I. What is the CAVC and How Does It Work?

The CAVC is an Article I administrative law court. It is located in Washington, D.C. The court has seven judges, and its opinions are issued in West’s Veterans Appeals Reporter (Vet. App.). Decisions can be issued as single judge memorandum opinions, which have no precedential value; three judge panel opinions, or en banc opinions. The CAVC was created in 1988. Before that time, there was no judicial review of veterans’ benefits decisions.

Once a claim reaches the CAVC, the process no longer is considered “non-adversarial”. Although most veteran litigants initially appear before the CAVC pro se, many are able to retain counsel, or obtain pro bono counsel, before their claims are adjudicated.

II. Appeals to the CAVC

An appeal to the CAVC is more akin to what attorneys are used to seeing in the traditional appellate process. New evidence no longer can be submitted. A reversal can be obtained only if the BVA erred in its decision, and is rarely obtained. However, the CAVC often finds error that is the basis for a remand, but that does not address the merits of the case or provide a final disposition.

A timely Notice of Appeal (within 120 days) must be filed at the CAVC. Counsel representing the veteran appellant must be admitted to this Article I court. There is a $50 filing fee, but it can be waived on a showing of need. Notices of Appearances must be filed by all attorneys, along with a copy of the attorney’s fee agreement, if any. The Secretary of Veterans Affairs is the Appellee. The Appellee is represented by the Office of General Counsel of the Department of Veterans Affairs, Group 7 (GCO).

The record (C-file) is transmitted to the CAVC. A Docketing Order then will be sent to the parties; that Order will se out the dates in the briefing schedule. Appellant has 60 days from receipt of the briefing schedule (issued immediately after transmittal of the record) to file a brief.

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Appellee has 60 days from the date of receipt of Appellee’s brief to file a response brief. Appellant then has 14 days to file a reply brief. Extensions of time must be requested by a motion, after concurrence with the other side is sought.

The time for a decision, following submission of the final brief, is between six months and two years. Hearings are not often held, and reversals (i.e., granting benefits) are very rare. However, remands are relatively common.

III. Settlement at CAVC

The Central Legal Staff of the CAVC will schedule a telephonic conference to discuss settlement of the case. This conference usually is scheduled shortly before the Appellant’s initial brief is due. Appellant will be required to submit a statement and bases of claims. There is no response filed by Appellee. The statement and bases of claims is due 14 days before the date of the telephonic conference. It is not uncommon for a settlement to be reached during the conference call in the form of a joint motion for remand, so that the case may be readjudicated on some ground(s). Settlements involving reversal or partial reversal of the BVA’s decision also can occur, but they are rare.

If no agreement is reached, the briefing schedule will be reviewed at the pre-briefing conference. Either party may request additional time, and the court may issue a new briefing schedule.

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CLAIMS BASED ON CLEAR AND UNMISTAKABLE ERROR (CUE)

A claim for a revision of a final decision of the RO or BVA, based on clear and unmistakable error (CUE) can be made at any time, no matter how long ago the decision was issued. In order to launch a successful CUE claim, the claimant must show that the RO or BVA committed an error and that, if not for that error, the veteran would have been awarded benefits. The claim for revision must clearly be identified as a CUE claim, and it must specifically identify the error that was made.

It is not clear and unmistakable error if the VA fails to obtain evidence. This is true despite the acknowledged duty to assist.

A decision that reverses or revises a prior adverse decision because of clear and unmistakable error will have “the same effect as if the decision had been made on the date of the prior decision.” This means that a veteran’s “effective date” will be the date of the original claim that was denied because of the CUE. This can be significant as, in some cases, it could mean 30 or 40 years of retroactive benefits. However, such claims generally are difficult to prove and the VA is extremely reluctant to grant them. An adverse BVA decision on a CUE claim can be appealed to the CAVC.

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“NON-SERVICE-CONNECTED” PENSION BENEFITS

Pension benefits may be available to veterans who are totally and permanently disabled or age 65 and older. Pension benefits are “needs based”, i.e., they are available only to veterans who are experiencing financial hardship and are determined (by standards adopted by the VA) to be unable to support themselves.

Eligibility for a VA pension based on disability does not require that the veteran’s disability be service connected, but the disability cannot be a result of the veteran’s own willful misconduct. Eligibility generally requires that the veteran have at least one disability that is rated at 60 percent or higher, or two or more disabilities with one rated at 40% or higher and a combined rating of 70% or higher. However, the VA will consider extra-schedular entitlement to pension if the veteran can provide evidence that he or she is totally and permanently disabled (e.g., social Security disability determination). Also, in order to be eligible for pension benefits, a veteran must have served 90 days or more of active military service, at least one of which was during a “period of war” as defined by the VA. See 38 U.S.C.S. § 1513; 38 C.F.R. § 3.2 (2005).

A veteran cannot receive both VA disability compensation and VA pension benefits at the same time. If the veteran is eligible for both, the higher of the two will be paid (generally disability compensation), unless the veteran requests otherwise.

A veteran will not be awarded more than the maximum annual pension rate (MAPR), based on the type and number of beneficiaries (e.g., veteran, spouse child). Monthly pension benefits are offset by income of any kind, including Social Security Income (SSI). Net worth determinations of veterans, for pension eligibility, are made on a case by case basis, and will not include the value of a veteran’s home. Certain expenses, including anticipated expenses (e.g., medical expenses that are not reimbursed), will be deducted from the veteran’s income when determining whether a veteran is income-eligible to receive a pension.

Brief Comparison Between VA Disability Compensation and VA Pension Benefits:

VA Disability Compensation VA Pension

Not based on financial need Based on financial needTotal disability not required Total disability or age 65 requiredService-connected disability No requirement of service connectionMay hold part- or full-time employment May not be substantially gainfully employedNo service in war time required Service in war time (defined by VA) required

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SPECIAL MONTHLY PENSION BENEFITS

Veterans who are considered to be “housebound” are entitled to increased benefits. A veteran who is entitled to pension benefits, and who needs the “aid and attendance” of another person, is entitled to additional benefits. Such benefits are referred to as special monthly pension (“SMP”).

“Housebound” benefits are available to a veteran who has a 100% rating for one disability and who is essentially confined to his or her home. Such benefits also are available to a veteran who has a 100% rating for one disability and a 60% or greater rating for at least one additional disability, regardless of whether the veteran actually is confined to his or her home.

A veteran is eligible for aid and attendance benefits (A & A benefits) if he or she requires assistance to perform tasks of daily living (e.g., bathing, dressing, feeding himself, cooking), is blind or is confined to a nursing home. A & A benefits can increase a veteran’s monthly payments by a significant amount.

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DEPENDENCY AND INDEMNITY COMPENSATION

The veteran’s disability claim “dies” with the veteran, except in the limited situation where it is awaiting a decision, after briefing, before the CAVC. The only claim that surviving spouses, children, or dependent parents can file after a veteran’s death (except for low income death pension, accrued benefits, and aid and attendance benefits) is a claim for dependency and indemnity compensation (DIC). DIC is a monthly payment that is awarded when the VA determines that the veteran’s death was service connected or, in limited instances, where certain other requirements are met.

For a survivor to be eligible for DIC, the veteran’s death must have resulted from one of the following causes:

A disease or injury incurred or aggravated in the line of duty while on active duty or active duty for training.

An injury incurred or aggravated in the line of duty while on inactive duty training.

A service-connected disability or a condition directly related to a service-connected disability.

DIC also may be paid to survivors of veterans who were totally disabled from service-connected conditions at the time of death, even if their service-connected disabilities did not cause their deaths. The survivor qualifies for DIC if the veteran was:

Continuously rated totally disabled for a period of 10 years immediately preceding death.

Continuously rated totally disabled from the date of military discharge and for at least 5 years immediately preceding death.

A former POW who died after September 30, 1999, and who was continuously rated totally disabled for a period of at least one year immediately preceding death.

A DIC claimant almost always will need to get a medical opinion or have medical evidence to support his or her claim when the death certificate does not show the service-connected condition as the cause or a contributory cause of the veteran’s death. The claimant’s opinion, or other lay opinions, alone will not be enough. A determination as to whether a death was caused by a service-connected condition requires medical expertise.

There also is an allowance for each dependent child under age 18. If the child is not in the custody of the surviving spouse, the child’s allowance usually is paid to the person who has custody.

DIC paid to dependent parents is based on need. Parents of the veteran, who receive DIC, are required to complete an annual income questionnaire and to notify the VA whenever

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there is a material change in their estimated income. Surviving spouses and parents receiving DIC may be able to get higher DIC benefits if they need the aid and attendance of another individual (including nursing home care), or if they are permanently housebound.

DIC claims received by the VA within one year of the date of the veteran’s death will be paid as of the month of the veteran’s death if they are determined to be valid. DIC claims received more than a year after the veteran’s death will be paid as of the date of the claim.

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OBTAINING ATTORNEY FEES UNDER EAJA

An attorney who represents a veteran can obtain fees and costs under the Equal Access to Justice Act (EAJA). 28 U.S.C. § 2412(d). Specifically, a litigant in an action against the government may be compensated for his or her legal fees and costs if it is determined that the position of the government was not substantially justified. In order to obtain such statutory fees, an EAJA petition must be timely filed and must strictly conform to the requirements of the statute.

EAJA fees are available only to a claimant who appeals a BVA decision to the CAVC, and who is the “prevailing party”. A veteran is considered the “prevailing party” if the CAVC reverses the BVA (unlikely) or vacates the decision of the BVA and remands the case for further proceedings because of an administrative error (much more likely).

Note that, in matters that are not taken on a pro bono basis, an attorney can engage in a direct-pay fee agreement with the veteran for representation after a Notice of Denial is received from the VARO. An attorney may charge such a fee based on a fixed amount, hourly rate or percentage of benefits recovered, as long as the fee is for services rendered on the claim(s) which are the subject of the Notice of Disagreement, and are “reasonable”. A contingency fee that does not exceed 20% of past-due benefits awarded on the claim(s) is presumed to be reasonable, but the presumption can be rebutted.

The VA will pay an attorney directly out of past due benefits (“direct-pay fee agreement”). However, a contingency fee exceeding 20% will be presumed not to be a direct-pay fee agreement, and the attorney will be responsible for collecting such a fee. All agreements for payments of fees by a claimant or third party must be filed within 30 days of execution with the VA Office of the General Counsel.

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ATTORNEY ACCREDITATION

On June 23, 2008, the Department of Veterans Affairs implemented new regulations regarding the representation of veterans before the VA and Board of Veterans Affairs.

The new regulation (38 C.F.R. § 14.629, et. seq.) requires attorneys as well as non-attorney agents to be accredited by the VA Office of the General Counsel. Attorneys can satisfy the initial accreditation requirement by completing VA form 21a. This is a short 3 page form which should take only a few minutes to complete. An attorney’s character and fitness to practice before the VA is presumed, if the attorney self-certifies membership in good standing in the bar. The application must be sent to the VA Office of the General Counsel at the address listed on the form.

Although the VA has stated that the application process will take approximately 1 month, applications have taken about 60 days as of December 2008. Unfortunately under this provision, attorneys are prohibited from “assisting claimants in the preparation, presentation, and prosecution of claims” unless first accredited. Generally, an attorney may not assist a veteran in the VA benefits claim until the VA has accredited the attorney.

In order to maintain accreditation, attorneys must complete at least 3 hours of qualifying continuing legal education (CLE) within 12 months following the date of the accreditation. CLE must be approved for at least 3 hours of credit in at least 1 jurisdiction and cover the following topics: representation before VA, claims procedures, basic eligibility for VA benefits, right to appeal, disability compensation, dependency and indemnity compensation, and pension. An additional 3 hours of CLE must be completed within 3 years from the date of the accreditation and every two years thereafter.

38 C.F.R. § 14.630 or “one time representation rule” is an exception to the accreditation requirement. Any person, including an attorney, may “prepare, present, and prosecute one claim” if the attorney has not previously represented a veteran before the VA. This provision requires that the attorney and claimant sign VA form 21-22a “Appointment of Attorney or Agent as Claimant’s Representative” (Notice of Appearance), and a statement that no compensation will be paid or charged for the services. The form can be sent to the VA regional office adjudicating the claim.

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