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

Major VA Benefit Programs Service-Connected Disability Benefits (“Compensation”) Service-Connected Disability Benefits (“Compensation”) Service-Connected Death Benefits for qualified survivors of deceased veterans (“DIC”) Service-Connected Death Benefits for qualified survivors of deceased veterans (“DIC”) (Needs-based) Non-Service-Connected Disability Pension Benefits for war-time veterans (Needs-based) Non-Service-Connected Disability Pension Benefits for war-time veterans (Needs-based) Non-Service-Connected Death Pension Benefits for certain qualified survivors of deceased war- time veterans (Needs-based) Non-Service-Connected Death Pension Benefits for certain qualified survivors of deceased war- time veterans

Service-Connected Disability Compensation VA makes up to four determinations in deciding a disability compensation claim: VA makes up to four determinations in deciding a disability compensation claim: Is the claimant a “veteran”? If yes, Is the claimant a “veteran”? If yes, Is veteran entitled to “service connection” for the claimed disability(ies)? If yes, Is veteran entitled to “service connection” for the claimed disability(ies)? If yes, Degree of the veteran’s service-connected disability and Degree of the veteran’s service-connected disability and The effective date of the award of disability compensation The effective date of the award of disability compensation

Status as a “Veteran” Definition of Veteran - A “person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable” Definition of Veteran - A “person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable”

Status as a “Veteran” (Cont’d) Character of Discharge Character of Discharge Discharge or release must have been “under conditions other than ‘dishonorable’” Honorable Discharge and General Discharge Under Honorable Conditions → qualifies Honorable Discharge and General Discharge Under Honorable Conditions → qualifies Discharge Under Other Than Honorable Conditions (OTH) → may or may not qualify (VA makes individualized “character of service” determination) Discharge Under Other Than Honorable Conditions (OTH) → may or may not qualify (VA makes individualized “character of service” determination)

Overview of Entitlement Criteria Veterans are entitled to compensation for disabilities incurred in or aggravated during period of active military, naval, or air service Veterans are entitled to compensation for disabilities incurred in or aggravated during period of active military, naval, or air service

Entitlement Criteria (Cont’d) Example: A battlefield wound to knee and a knee injured while sliding into second base during a baseball game played during active service may both be service-connected conditions Example: A battlefield wound to knee and a knee injured while sliding into second base during a baseball game played during active service may both be service-connected conditions

Entitlement Criteria (Cont’d) Assuming “veteran” status there are three basic entitlement criteria: Assuming “veteran” status there are three basic entitlement criteria: Evidence the veteran currently suffers from a disability Evidence the veteran currently suffers from a disability Evidence of an incident, injury, or event during the period of the veteran’s military service Evidence of an incident, injury, or event during the period of the veteran’s military service Evidence of a link between the current disability and the incident, injury, or event during service Evidence of a link between the current disability and the incident, injury, or event during service

Three Criteria for Service Connection First Criterion: Evidence that the veteran currently suffers from a disability First Criterion: Evidence that the veteran currently suffers from a disability Disability almost always must be diagnosed by a medical professional Disability almost always must be diagnosed by a medical professional Under VA’s duty to assist – lay evidence of vet’s recurrent symptoms may force the VA to provide a free VA medical examination to diagnose the disability Under VA’s duty to assist – lay evidence of vet’s recurrent symptoms may force the VA to provide a free VA medical examination to diagnose the disability

Three Criteria for Service Connection (Cont’d) Second Criterion: Evidence of an event, injury, or disease that occurred during the period of active military service Second Criterion: Evidence of an event, injury, or disease that occurred during the period of active military service VA is required to consider lay evidence; no corroborative evidence technically required VA is required to consider lay evidence; no corroborative evidence technically required Relaxed evidentiary standards for combat veterans Relaxed evidentiary standards for combat veterans

Three Criteria for Service Connection (Cont’d) Third Criterion: A link or nexus between the current disability and an event, injury or disease that occurred during the period of military service There are five major ways to establish linkage; VA must consider each theory reasonably raised by the evidence of record There are five major ways to establish linkage; VA must consider each theory reasonably raised by the evidence of record VA must make reasonable efforts to assist vet in substantiating the claim VA must make reasonable efforts to assist vet in substantiating the claim

Five Ways To Establish a Disability is Service-Connected Directly: Disability was manifested or diagnosed during military service, or an injury, event or incident in service caused the veteran eventually to suffer from a disability Directly: Disability was manifested or diagnosed during military service, or an injury, event or incident in service caused the veteran eventually to suffer from a disability “Delayed Direct Service Connection” “Delayed Direct Service Connection” Chronicity and Continuity Chronicity and Continuity Chronic Conditions - A condition shown in service is determined to be “chronic” Chronic Conditions - A condition shown in service is determined to be “chronic” Continuity of Symptomatology Continuity of Symptomatology

Five Ways To Establish a Disability is Service-Connected (Cont’d) Aggravation: worsening of a condition that preexisted service Aggravation: worsening of a condition that preexisted service Temporary or intermittent flare-ups are not sufficient unless the underlying condition permanently worsened Temporary or intermittent flare-ups are not sufficient unless the underlying condition permanently worsened Presumption of Soundness - Unless the service entrance exam indicates otherwise, the VA presumes the veteran was in sound condition when he or she entered the service Presumption of Soundness - Unless the service entrance exam indicates otherwise, the VA presumes the veteran was in sound condition when he or she entered the service

Five Ways To Establish a Disability is Service-Connected (Cont’d) Statutory Presumption: Statutory Presumption: Chronic Diseases Chronic Diseases Tropical Diseases Tropical Diseases POWs POWs Persian Gulf Veterans Persian Gulf Veterans Radiation-Exposed Veterans Radiation-Exposed Veterans Exposure to Herbicide Agents (Agent Orange) Exposure to Herbicide Agents (Agent Orange)

Five Ways To Establish a Disability is Service-Connected (Cont’d) Secondarily:Demonstrating that a condition is proximately the result of, or linked to, a service-connected condition Secondarily:Demonstrating that a condition is proximately the result of, or linked to, a service-connected condition Ex: Secondary SC may be established for a mental condition caused or aggravated by a SC physical condition Ex: Secondary SC may be established for a mental condition caused or aggravated by a SC physical condition Likewise, secondary SC may be established for a physical condition caused by a SC mental condition Likewise, secondary SC may be established for a physical condition caused by a SC mental condition

Five Ways To Establish a Disability is Service-Connected (Cont’d) VA Medical Treatment or Vocational Rehabilitation: VA Medical Treatment or Vocational Rehabilitation: Disability caused by VA medical care or vocational rehabilitation may be treated “as if” it is connected to service Disability caused by VA medical care or vocational rehabilitation may be treated “as if” it is connected to service Requires showing of fault or accident Requires showing of fault or accident

Establishing the Appropriate Disability Rating Percentage

Establishing the Appropriate Percentage of Disability Assignment of Appropriate percentage: Assignment of Appropriate percentage: Correct diagnosis and the assignment of the correct “diagnostic code” (DC) Correct diagnosis and the assignment of the correct “diagnostic code” (DC) Determining the current symptomatology Determining the current symptomatology Comparing the symptomatology against the appropriate diagnostic code Comparing the symptomatology against the appropriate diagnostic code

Establishing the Appropriate Percentage of Disability (Cont’d) General Information: Percentage designed to reflect the average impairment in earning capacity Percentage designed to reflect the average impairment in earning capacity ≥2 SC disabilities → combined disability rating (percentages are not added arithmetically) ≥2 SC disabilities → combined disability rating (percentages are not added arithmetically) Different disabilities may arise from a single disease entity → separated disability ratings Different disabilities may arise from a single disease entity → separated disability ratings

Establishing the Appropriate Percentage of Disability (Cont’d) General Information: Percentages are set in increments of 10, but may be zero Percentages are set in increments of 10, but may be zero Functional loss due to pain and weakness has to be separately considered and rated Functional loss due to pain and weakness has to be separately considered and rated One disability may be compensated under multiple diagnostic codes→ separate disability ratings -- if “none of the symptomatology... is duplicative of, or overlapping....” One disability may be compensated under multiple diagnostic codes→ separate disability ratings -- if “none of the symptomatology... is duplicative of, or overlapping....”

Disability Payments Disability compensation is not taxable and is not subject to garnishment or attachment Disability compensation is not taxable and is not subject to garnishment or attachment The level of payments is fixed by statute The level of payments is fixed by statute The following rates are effective 12/1/2013 The following rates are effective 12/1/ % combined rating pays $131 per month 10% combined rating pays $131 per month 50% combined rating pays $822 per month 50% combined rating pays $822 per month 100% combined rating pays $2,858 per month 100% combined rating pays $2,858 per month

Additional Compensation Additional Compensation for Dependents if at least 30% disabled for service-connected disabilities Additional Compensation for Dependents if at least 30% disabled for service-connected disabilities Monthly rates for dependents of veterans rated 100% Monthly rates for dependents of veterans rated 100% Spouse $157 Spouse $157 No spouse, one child $105 No spouse, one child $105 Spouse and one child $272 Spouse and one child $272 Each additional child $78 Each additional child $78 Dependent parent $126 Dependent parent $126 Child pursuing post-secondary education $252 Child pursuing post-secondary education $252

Eligibility for Increased or Special Monthly Compensation Increased or SMC above 100% amount: Increased or SMC above 100% amount: Aid and Attendance Aid and Attendance In other situations In other situations

Total Disability Based on Individual Unemployability (TDIU) TDIU - 100% rating even though the service- connected condition(s) are rated less than 100% TDIU - 100% rating even though the service- connected condition(s) are rated less than 100% Disabled veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities Disabled veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities

Total Disability Based on Individual Unemployability (Cont’d) To qualify: To qualify: Unable to engage in a substantially gainful occupation (SGO); and Unable to engage in a substantially gainful occupation (SGO); and Veteran has: Veteran has: One SC disability rated at 60% or more; or One SC disability rated at 60% or more; or Two or more disabilities, one of which is rated at least 40% and additional service-connected disabilities to bring the combined rating to 70% or more; or Two or more disabilities, one of which is rated at least 40% and additional service-connected disabilities to bring the combined rating to 70% or more; or Can by assigned an extraschedular rating under 38 C.F.R. § 4.16(b) Can by assigned an extraschedular rating under 38 C.F.R. § 4.16(b)

Total Disability Based on Individual Unemployability (Cont’d) A SGO provides annual income that exceeds the poverty threshold for one person A SGO provides annual income that exceeds the poverty threshold for one person Education and occupational history considered Education and occupational history considered “Marginal employment” should not be considered SGO “Marginal employment” should not be considered SGO TDIU should be provided to all veterans who are unable to secure and follow an SGO due to service-connected conditions TDIU should be provided to all veterans who are unable to secure and follow an SGO due to service-connected conditions

Reevaluation of Disability VA may choose to reevaluate a service- connected condition VA may choose to reevaluate a service- connected condition VA may increase or decrease the percentage evaluation VA may increase or decrease the percentage evaluation If there is no change, the VA will “confirm and continue” If there is no change, the VA will “confirm and continue” VA will usually schedule a review examination VA will usually schedule a review examination

VA Claims Adjudication Process

Adjudication Process at the VARO The process begins with receipt of a claim The process begins with receipt of a claim Formal Claim Formal Claim Informal Claim Informal Claim Both formal and informal claims must show: Both formal and informal claims must show: an intent to apply for benefits an intent to apply for benefits an identification of the benefits sought an identification of the benefits sought a communication in writing a communication in writing

Adjudication at the VARO (Cont’d) The case is referred to an RO rating specialist The case is referred to an RO rating specialist The decision is recorded in a VA rating decision The decision is recorded in a VA rating decision Notification letter to claimant and “Rating Decision” includes: Notification letter to claimant and “Rating Decision” includes: A statement of the reasons for the decision A statement of the reasons for the decision A summary of the evidence considered by the VA A summary of the evidence considered by the VA Notice of procedural and appellate rights Notice of procedural and appellate rights

Administrative Appellate Process 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

Administrative Appellate Process (Cont’d) Upon receipt of the NOD, VARO must review the claims file and either: Upon receipt of the NOD, VARO must review the claims file and either: Allow (i.e., grant) the claim; or Allow (i.e., grant) the claim; or Issue a Statement of the Case (SOC) Issue a Statement of the Case (SOC)

Administrative Appellate Process (Cont’d) De Novo Review by DRO: De Novo Review by DRO: Optional review takes place between the filing of the NOD and VA’s issuance of the SOC Optional review takes place between the filing of the NOD and VA’s issuance of the SOC DRO review must be requested within 60 days after date of VA letter offering DRO review DRO review must be requested within 60 days after date of VA letter offering DRO review

Administrative Appellate Process (Cont’d) DRO may conduct an informal conference or a hearing DRO may conduct an informal conference or a hearing DRO may uphold, revise, or reverse, but may not revise or reverse in a manner adverse to the claimant unless the earlier decision contained clear and unmistakable error DRO may uphold, revise, or reverse, but may not revise or reverse in a manner adverse to the claimant unless the earlier decision contained clear and unmistakable error Traditional appellate process proceeds as usual after the DRO decision Traditional appellate process proceeds as usual after the DRO decision

Regional Office Hearings Regional Office Hearings Regional Office Hearings Veteran can have a hearing before a DRO or other VA employee Veteran can have a hearing before a DRO or other VA employee Can be held “at any time” Can be held “at any time” Hearing officer must “explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant’s position” Hearing officer must “explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant’s position”

Substantive Appeal - VA Form 9 Substantive Appeal Substantive Appeal After the SOC claimant must perfect the appeal After the SOC claimant must perfect the appeal File a VA Form 9 File a VA Form 9 VA Form 9 should be filed with the RO that made the decision being appealed VA Form 9 should be filed with the RO that made the decision being appealed Veteran has 60 days from SOC or the remainder of the one-year period that began with the date of the mailing of the VA letter of denial - whichever is longer Veteran has 60 days from SOC or the remainder of the one-year period that began with the date of the mailing of the VA letter of denial - whichever is longer

Substantive Appeal (Cont’d) VA Form 9 should include: VA Form 9 should include: Factual and legal errors in the RO decision Factual and legal errors in the RO decision Can raise new theories, expand the issues before the BVA, and present claims for different VA benefits Can raise new theories, expand the issues before the BVA, and present claims for different VA benefits RO may respond to the VA Form 9 with a rating decision or Supplemental Statement of the Case (SSOC) RO may respond to the VA Form 9 with a rating decision or Supplemental Statement of the Case (SSOC)

Board of Veterans’ Appeals BVA is the final arbiter BVA is the final arbiter Assigned to a single Board member Assigned to a single Board member Jurisdiction over all questions on claims involving benefits under the laws administered by the VA Jurisdiction over all questions on claims involving benefits under the laws administered by the VA No jurisdiction over medical decisions No jurisdiction over medical decisions Case is considered de novo Case is considered de novo

Board of Veterans’ Appeals (Cont’d) A claimant may present new documentary evidence and/or witnesses A claimant may present new documentary evidence and/or witnesses BVA must remand to the agency of original jurisdiction if further evidence, clarification of evidence, or correction of a procedural defect is needed BVA must remand to the agency of original jurisdiction if further evidence, clarification of evidence, or correction of a procedural defect is needed

Board of Veterans’ Appeals (Cont’d) Appellant may request an IME opinion Appellant may request an IME opinion Must show “a complex or controversial medical or legal issue involved in the appeal” Must show “a complex or controversial medical or legal issue involved in the appeal” Appellant has a right to a hearing: Appellant has a right to a hearing: Before a BVA member sitting in Washington D.C. Before a BVA member sitting in 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 VA facility A videoconference hearing at a regional VA facility

Board of Veterans’ Appeals (Cont’d) Precedent CAVC decisions establishing a rule of law must be followed by the RO/BVA Precedent CAVC decisions establishing a rule of law must be followed by the RO/BVA Also bound to follow substantive manual provisions Also bound to follow substantive manual provisions All BVA decisions must contain “a written statement of... reasons or bases....” All BVA decisions must contain “a written statement of... reasons or bases....” Must mail a copy to the claimant and rep Must mail a copy to the claimant and rep BVA decisions can be appealed to the CAVC BVA decisions can be appealed to the CAVC

Board of Veterans’ Appeals (Cont’d) Statistical Summary of BVA Dispositions: Statistical Summary of BVA Dispositions: Allow/grant in ~28% of cases Allow/grant in ~28% of cases Remanded ~44% of cases Remanded ~44% of cases Denied ~24% of cases Denied ~24% of cases An additional ~4% were disposed of through other means An additional ~4% were disposed of through other means

Methods for Obtaining Benefits After a Final VA Denials

Major Options for a Claimant Major Options: Major Options: Reopened claim at the RO Reopened claim at the RO CUE motion at the RO or BVA CUE motion at the RO or BVA Filing a Notice of Appeal with the CAVC Filing a Notice of Appeal with the CAVC Filing a Motion for Reconsideration with the BVA Filing a Motion for Reconsideration with the BVA Key Factor - “Effective date” of benefits Key Factor - “Effective date” of benefits Date from which benefits will be paid Date from which benefits will be paid

Reopened Claim Reopened Claim – Two Steps Reopened Claim – Two Steps STEP ONE: Has the claimant submitted “new and material evidence”? STEP ONE: Has the claimant submitted “new and material evidence”? “new” - existing evidence not previously submitted to agency decisionmakers “new” - existing evidence not previously submitted to agency decisionmakers “material” - if it, by itself or when considered with previous evidence of record, relates to at least one of the unproven facts necessary to substantiate the claim “material” - if it, by itself or when considered with previous evidence of record, relates to at least one of the unproven facts necessary to substantiate the claim

Reopened Claim (Cont’d) STEP TWO:De Novo Review STEP TWO:De Novo Review VA “must evaluate the merits of the veteran’s claim in light of all evidence, both old and new.” VA “must evaluate the merits of the veteran’s claim in light of all evidence, both old and new.” There is no time limit within which a claim to reopen must be filed and there is no limit on the number of claims to reopen a claimant may file There is no time limit within which a claim to reopen must be filed and there is no limit on the number of claims to reopen a claimant may file

Revision of Decision Based on CUE A successful CUE Claim “has the same effect as if the decision had been made on the date of the prior decision” A successful CUE Claim “has the same effect as if the decision had been made on the date of the prior decision” File at any time after decision becomes final File at any time after decision becomes final If CUE is present in a VARO decision, each CUE theory must be presented to and adjudicated by the RO in the first instance If CUE is present in a VARO decision, each CUE theory must be presented to and adjudicated by the RO in the first instance If CUE is present in a BVA decision, file CUE motion with the BVA in the first instance If CUE is present in a BVA decision, file CUE motion with the BVA in the first instance

Revision of Decision Based on CUE (Cont’d) Final BVA decisions are subject to CUE Final BVA decisions are subject to CUE No time limit to file No time limit to file BVA’s disposition of the CUE motion is subject to CAVC review BVA’s disposition of the CUE motion is subject to CAVC review CUE must be based on the record that was before the adjudicator at the time of original decision making CUE must be based on the record that was before the adjudicator at the time of original decision making

CUE Pleading Requirements CUE pleading requirements CUE pleading requirements Clearly and specifically allege the error or errors of fact or law Clearly and specifically allege the error or errors of fact or law The legal or factual basis for such allegations The legal or factual basis for such allegations Why the result would have been manifestly different but for the alleged error Why the result would have been manifestly different but for the alleged error

Attorney Representation of a VA Claimant

Admission of Attorneys to Represent VA Claimants before the VA Two Steps Two Steps STEP 1: Complete and send VA Form 21a to the Office of the VA General Counsel (VAGC). When VAGC responds with initial accreditation letter → you may begin to assist a claimant on a VA claim STEP 1: Complete and send VA Form 21a to the Office of the VA General Counsel (VAGC). When VAGC responds with initial accreditation letter → you may begin to assist a claimant on a VA claim STEP 2 TO CONTINUE ACCREDITATION: Complete three hours of approved CLE within the one-year period and then an additional three hours for every subsequent two-year period STEP 2 TO CONTINUE ACCREDITATION: Complete three hours of approved CLE within the one-year period and then an additional three hours for every subsequent two-year period

To be Recognized by VA as the Representative of a Particular Claimant Complete, sign, and file a POA form (VA Form 21-22a) Complete, sign, and file a POA form (VA Form 21-22a) May not designate a law firm as the representative May not designate a law firm as the representative POA stays in effect until specifically revoked POA stays in effect until specifically revoked Generally only one representative is authorized Generally only one representative is authorized Newest POA “constitute[s] a revocation” of old POA Newest POA “constitute[s] a revocation” of old POA

Representative of a Particular Claimant (Cont’d) Split Representation Split Representation Scope of the advocate’s representation may be restricted Scope of the advocate’s representation may be restricted If POA not limited the VA will consider the advocate to be the representative on all of the VA claims If POA not limited the VA will consider the advocate to be the representative on all of the VA claims Use VA Form 21-22a to limit the scope Use VA Form 21-22a to limit the scope May cause some confusion at the VARO May cause some confusion at the VARO

Obtaining the VA Claims File Claimants are entitled to one copy of their claims file at no charge Claimants are entitled to one copy of their claims file at no charge Claimant and/or advocate is able to review the claims folder at the RO Claimant and/or advocate is able to review the claims folder at the RO Best way: certify-mail a FOIA request to RO for copy of all docs in C-file w/copy of VA Form 21-22a or Privacy Act waiver Best way: certify-mail a FOIA request to RO for copy of all docs in C-file w/copy of VA Form 21-22a or Privacy Act waiver Pursuant to FOIA, the VA must determine within 20 business days of receiving the request whether it will provide a copy Pursuant to FOIA, the VA must determine within 20 business days of receiving the request whether it will provide a copy

Obtaining the VA Claims File (Cont’d) Pursuant to FOIA, the VA must respond within 20 business days of receiving the request Pursuant to FOIA, the VA must respond within 20 business days of receiving the request Advocate should treat a non-response within time period as a denial and appeal RO’s refusal to provide a copy of a claims file by certified mail to the VA Office of General Counsel in DC Advocate should treat a non-response within time period as a denial and appeal RO’s refusal to provide a copy of a claims file by certified mail to the VA Office of General Counsel in DC

Judicial Review of a Final BVA Decision Denying Benefits Judicial Review of a Final BVA Decision Denying Benefits

The U.S. Court of Appeals for Veterans Claims (CAVC) The Veterans’ Judicial Review Act (VJRA) of 1988 created the U.S. Court of Veterans Appeals The Veterans’ Judicial Review Act (VJRA) of 1988 created the U.S. Court of Veterans Appeals There are now 9 judges on CAVC There are now 9 judges on CAVC CAVC has exclusive jurisdiction to review BVA decisions CAVC has exclusive jurisdiction to review BVA decisions Only claimants who do not completely prevail at the BVA can appeal Only claimants who do not completely prevail at the BVA can appeal

Jurisdictional Requirements Two Jurisdictional Requirements Two Jurisdictional Requirements A final BVA decision A final BVA decision A BVA decision remanding a claim to a VA regional office is not a final decision A BVA decision remanding a claim to a VA regional office is not a final decision Timely Notice of Appeal (NOA) Timely Notice of Appeal (NOA) Must be received by the CAVC or postmarked by USPS within 120 days of date on which BVA mails its final decision Must be received by the CAVC or postmarked by USPS within 120 days of date on which BVA mails its final decision Equitable tolling of the 120-day appeal period is potentially available Equitable tolling of the 120-day appeal period is potentially available