Transcript Veterans Benefits Training PPT for EJW_final

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 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 Death Pension
Benefits for certain qualified survivors of deceased wartime veterans
2
TOPIC A: Entitlement
Criteria for Service-Connected
Disability Compensation
3
Service-Connected
Disability Compensation

VA makes up to four determinations in deciding
a disability compensation claim:
Is the claimant a “veteran”? If yes,
 Is veteran entitled to “service connection” for the
claimed disability(ies)? If yes,
 Degree of the veteran’s service-connected disability
and
 The effective date of the award of disability
compensation

4
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”
5
Willful Misconduct

Willful Misconduct:
 Disabilities
that result from a veteran’s willful
misconduct are not compensable
 “conscious

wrongdoing or known prohibited action”
Alcohol and Substance Abuse:
 Compensation
may not be paid for disabilities
the result of primary alcohol abuse or
substance abuse
6
Alcoholism and
Substance Abuse/STDs

Alcoholism/Substance Abuse as Secondary to a
Service-Connected Condition(s):

Compensation payable if abuse-related disabilities
are secondary to a service-connected disability


Any disability resulting from that alcoholism or drug
abuse, such as cirrhosis of the liver, may also be serviceconnected
Residuals of venereal disease or HIV are not
willful misconduct
7
Status as a “Veteran” (Cont’d)

Character of Discharge
Discharge or release must have been “under
conditions other than ‘dishonorable’”
 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)
8
Overview of Entitlement Criteria

Veterans are entitled to compensation for
disabilities incurred in or aggravated during
period of active military, naval, or air
service
 Note
- Service department findings are
binding on VA for purposes of establishing
service in the U.S. Armed Forces
9
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
10
Entitlement Criteria (Cont’d)

Assuming “veteran” status there are three basic
entitlement criteria:
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 a link between the current disability and
the incident, injury, or event during service

11
Three Criteria
for Service Connection

First Criterion: Evidence that the
veteran currently suffers from a
disability
 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
12
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
 VA
is required to consider lay evidence; no
corroborative evidence technically required
 Relaxed evidentiary standards for combat
veterans
13
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
VA must make reasonable efforts to assist vet in
substantiating the claim
14
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
“Delayed Direct Service Connection”
 Chronicity and Continuity

Chronic Conditions - A condition shown in service is
determined to be “chronic”
 Continuity of Symptomatology

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Five Ways To Establish a
Disability is Service-Connected (Cont’d)

Aggravation: worsening of a condition that
preexisted service
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

16
Five Ways To Establish a
Disability is Service-Connected (Cont’d)

Statutory Presumption:
 Chronic
Diseases
 Tropical Diseases
 POWs
 Persian Gulf Veterans
 Radiation-Exposed Veterans
 Exposure to Herbicide Agents (Agent
Orange)
17
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
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

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Five Ways To Establish a
Disability is Service-Connected (Cont’d)

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
 Requires showing of fault or accident

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TOPIC B: Establishing
the Appropriate Disability
Rating Percentage
20
Establishing the
Appropriate Percentage of Disability

Assignment of Appropriate percentage:
Correct diagnosis and the assignment of the
correct “diagnostic code” (DC)
 Determining the current symptomatology
 Comparing the symptomatology against the
appropriate diagnostic code

21
Establishing the Appropriate
Percentage of Disability (Cont’d)
General Information:
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

Percentage designed to reflect the average
impairment in earning capacity
≥2 SC disabilities → combined disability
rating (percentages are not added
arithmetically)
Different disabilities may arise from a single
disease entity → separated disability ratings
22
Establishing the Appropriate
Percentage of Disability (Cont’d)
General Information:
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

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
One disability may be compensated under multiple
diagnostic codes→ separate disability ratings -- if
“none of the symptomatology . . . is duplicative of,
or overlapping. . . .”
23
Disability Payments


Disability compensation is not taxable and is
not subject to garnishment or attachment
The level of payments is fixed by statute

The following rates are effective 12/1/2012
10% combined rating pays $129 per month
 50% combined rating pays $810 per month
 100% combined rating pays $2,816 per month

24
Additional Compensation


Additional Compensation for Dependents if at least
30% disabled for service-connected disabilities
Monthly rates for dependents of veterans rated 100%
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Spouse $157
No spouse, one child $105
Spouse and one child $272
Each additional child $78
Dependent parent $126
Child pursuing post-secondary education $252
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Eligibility for Increased or
Special Monthly Compensation

Increased or SMC above 100% amount:
Aid and Attendance
 In other situations

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Total Disability Based on
Individual Unemployability (TDIU)

TDIU - 100% rating even though the serviceconnected 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
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Total Disability Based on
Individual Unemployability (Cont’d)

To qualify:
Unable to engage in a substantially gainful
occupation (SGO); and
 Veteran has:

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
 Can by assigned an extraschedular rating under 38 C.F.R.
§ 4.16(b)

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Total Disability Based on
Individual Unemployability (Cont’d)
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
A SGO provides annual income that exceeds the
poverty threshold for one person
Education and occupational history considered
“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
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Extraschedular Rating for a
Service-Connected Disability

Extraschedular Rating
 Where
a case “presents such an exceptional
or unusual disability picture with such
related factors as marked interference with
employment or frequent periods of
hospitalization as to render impractical the
application of the regular schedular
standards”
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Reevaluation of Disability

VA may choose to reevaluate a serviceconnected condition


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VA may increase or decrease the percentage
evaluation
If there is no change, the VA will “confirm and
continue”
VA will usually schedule a review examination
31
Reduction in Evaluation

Reduction of an established percentage:
 VA
must demonstrate the SC condition has
improved to the point where a lower
percentage of disability should be assigned
 Possible in some cases to gauge with nonmedical evidence
32
Reduction of a
Total Schedular Evaluation

Reduction of a Total Schedular Evaluation:
 An
examination showing “material
improvement” under “the ordinary conditions
of life” is required
 VA must compare the symptomatology which
formed the basis for the previous grant with
the symptomatology of the most recent or last
exam
33
Reduction of Grant of IU

Reduction of Grant of IU
 VA
must demonstrate that “actual
employability is established by clear and
convincing evidence”
 If engaged in SGO, TDIU may not be
reduced solely on that basis unless the veteran
maintains the occupation for 12 consecutive
months
34
Rating in Effect for 5 Years

Rating In Effect for 5 Years or More
 May
not reduce the rating unless all
evidence of record shows sustained
improvement
 Cannot be reduced on examinations
reflecting the results of bed rest
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Rating in Effect for 5 Years (Cont’d)

To reduce a rating in effect for 5 Years:
Must find there has been an improvement
 Improvement in the ability to live and work
 History of the disability must be reviewed
 Reduction must be based upon a thorough
current examination
 Must find “it reasonably certain that the
improvement will be maintained under the
ordinary conditions of life”

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TOPIC C: VA Claims
Adjudication Process
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Adjudication Process at the VARO

The process begins with receipt of a claim


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Both formal and informal claims must show:

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
Formal Claim
Informal Claim
an intent to apply for benefits
an identification of the benefits sought
a communication in writing
Inferred Claim

Claim not directly articulated by the claimant but reasonably
raised by the evidence of record
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Adjudication at the VARO (Cont’d)

ROs are required to notify the claimant of:
Evidence/information necessary to prove the
claim
 What information/evidence the claimant should
provide
 What information/evidence VA will attempt to
obtain
 Claimant has one year from the date of
notification to respond with requested
information/evidence

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Adjudication at the VARO (Cont’d)

Then the case is referred to an RO rating
specialist
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
The decision is recorded in a VA rating decision
Notification letter to claimant and “Rating
Decision” includes:
A statement of the reasons for the decision
 A summary of the evidence considered by the VA
 Notice of procedural and appellate rights

40
Administrative Appellate Process

To initiate an appeal:
Claimant or claimant’s authorized rep
must file a written notice of
disagreement (NOD), which must:
• Express disagreement with a
specific determination
• Express desire for appellate review
• Be filed with the RO
• Within one year of the RO
decision
41
Administrative
Appellate Process (Cont’d)

Upon receipt of the NOD, VARO must
review the claims file and either:
 Allow
 Issue
(i.e., grant) the claim; or
a Statement of the Case (SOC)
42
Administrative
Appellate Process (Cont’d)

De Novo Review by DRO:
 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
43
Administrative
Appellate Process (Cont’d)



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
Traditional appellate process proceeds as usual
after the DRO decision
44
Regional Office Hearings

Regional Office Hearings
Veteran can have a hearing before a DRO or other
VA employee
 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”

45
Substantive Appeal - VA Form 9

Substantive Appeal
After the SOC claimant must perfect the appeal
 File a VA Form 9
 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

46
Substantive Appeal (Cont’d)

VA Form 9 should include:
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
 RO may respond to the VA Form 9 with a rating
decision or Supplemental Statement of the Case
(SSOC)

47
Board of Veterans’ Appeals

BVA is the final arbiter
 Assigned
to a single Board member
 Jurisdiction over all questions on claims
involving benefits under the laws
administered by the VA
 No jurisdiction over medical decisions
 Case is considered de novo
48
Board of Veterans’ Appeals (Cont’d)


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
49
Board of Veterans’ Appeals (Cont’d)

Appellant may request an IME opinion


Must show “a complex or controversial medical
or legal issue involved in the appeal”
Appellant has a right to a hearing:
Before a BVA member sitting in Washington
D.C.
 Before a traveling Board member at a RO
 A videoconference hearing at a regional VA
facility

50
Board of Veterans’ Appeals (Cont’d)

Precedent CAVC decisions establishing a rule
of law must be followed by the RO/BVA



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Also bound to follow substantive manual
provisions
All BVA decisions must contain “a written
statement of . . . reasons or bases. . . .”
Must mail a copy to the claimant and rep
BVA decisions can be appealed to the CAVC
51
Board of Veterans’ Appeals (Cont’d)

Statistical Summary of BVA Dispositions:
 48,588
dispositions in FY 2011
 Allow/grant
in 28.5% of cases
 Remanded 44.2% of cases
 Denied 24.2% of cases
 An additional 3.1% were disposed of through
other means
52
TOPIC D:
Judicial Review of a Final
BVA Decision
Denying Benefits
53
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
There are now 9 judges on CAVC
www.uscourts.cavc.gov
CAVC has exclusive jurisdiction to review BVA
decisions
Only claimants who do not completely prevail at
the BVA can appeal
54
Jurisdictional Requirements

Two Jurisdictional Requirements

A final BVA decision


A BVA decision remanding a claim to a VA regional
office is not a final decision
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
 Equitable tolling of the 120-day appeal period is
potentially available

55
Jurisdictional Questions

Motion for Reconsideration/Vacate

Motion filed at BVA within the 120-day CAVC
appeal period

New 120-day CAVC appeal period begins:




The date the BVA receives the claimant’s notice of withdrawal;
or
The date the BVA properly sends the claimant notice of denial;
or
The date the BVA properly sends notice of its decision to deny
complete relief after having granted the claimant’s motion
No need to file a protective NOA with CAVC
56
Jurisdictional Questions (Cont’d)

What happens when an NOA is filed at the
CAVC and then a Motion for Reconsideration
is filed at the BVA?
BVA must obtain the Court’s permission to vacate
decision
 Court will not dismiss the appeal if the NOA filed
prior to the motion for reconsideration/vacate

57
Jurisdictional Questions (Cont’d)

Two Other Scenarios:
If NOA and reconsideration/vacate filed
simultaneously, jurisdiction will remain with the
Board
 If the motion for reconsideration is postmarked
within the 120-day appeal period to the CAVC, the
claimant will be able to receive Court review of the
BVA appellate decision

58
Jurisdictional Exception

Petition for Extraordinary Relief in the
Nature of Mandamus

The All Writs Act

CAVC has jurisdiction to issue an extraordinary writ
(writ of mandamus) to VA officials



Can compel VA action
Based upon potential jurisdiction
Petitioner must demonstrate: (1) a clear and
indisputable right to a writ and (2) the lack of
alternative means to obtain the relief sought
59
Single-Judge or Panel Disposition?
Single-Judge Disposition
 Single-judge decision issued in > 90% of all
contested appeals
 Single-judge decisions are not precedential,
not citable and not published in Vet. App.
reporter
 Standards used by screening judge to decide
whether to decide by single-judge:

Case is of relative simplicity and:
 Does not establish a new rule of law
60
Single-Judge or
Panel Disposition (Cont’d)

Factors cont’d:
 Does
not alter, modify, criticize, or clarify an
existing rule of law
 Does not apply an established rule of law to a
novel fact situation
Does not constitute the only recent, binding precedent
on a particular point of law within the power of the
Court to decide
 Does not involve a legal issue of continuing public
interest; and
 The outcome is not reasonably debatable

61
Scope of CAVC Review
Scope is based upon Administrative
Procedure Act, with certain exceptions
 CAVC review is based exclusively on the
record of proceedings that was before the
Secretary and the BVA

 Includes
“relevant” documents within the
Secretary’s control prior to the BVA
decision
62
Scope of CAVC Review (Cont’d)

Under 38 U.S.C. § 7261(a), CAVC can:
Decide all relevant questions of law, interpret
constitutional, statutory, and regulatory provisions
 Determine the meaning or applicability of the
terms of an action of the Secretary
 Compel action of the Secretary unlawfully
withheld or unreasonably delayed

63
Scope of CAVC Review (Cont’d)

38 U.S.C. § 7261(a) Cont’d:

Hold unlawful and set aside decisions of the BVA
found to be:
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law
 contrary to constitutional right, power, privilege, or
immunity
 in excess of statutory authority, or limitations, or in
violation of a statutory right
 without observance of procedure required by law

64
Standards of Review

Standard of Review for Findings of Fact:

Court can hold unlawful, set aside, or reverse
factual finding if it is “clearly erroneous”
CE = “when although there is evidence to support it,
the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been
committed”
 “Where there are two permissible views of the
evidence, the fact finder’s choice between them cannot
be clearly erroneous”

65
Standards of Review (Cont’d)
 Standard

of Review for Issues of Law:
De Novo Review of
 The
proper interpretation of a statute or regulation
 Whether appellant would be prejudiced by the
BVA deciding an issue not first decided by the RO
66
Standards of Review (Cont’d)
 Standard
of Review for Application of Law to
Facts:
Arbitrary/capricious
 Examples



A challenge to the VA’s selection of the appropriate
diagnostic code for rating
Whether BVA erred in determining that a prior final
agency decision did not contain clear and unmistakable
error (CUE)
67
Standards of Review (Cont’d)

CAVC must review the record of proceedings
below and take due account of:
VA’s application of the benefit-of-the-doubt rule
 Rule of prejudicial error



CAVC may not review or modify the VA
schedule of ratings for disabilities
CAVC may review VA regulations and
precedential opinions of the VA General
Counsel
68
Exhaustion of
Administrative Remedies

Applicability of the doctrine to CAVC
review:
If the claimant never raised or discussed an
argument/issue while the claim was pending
before VA, the Secretary may argue that the
Court should not consider the issue
 Will the Court hear the claimant arguments
raised for first time at CAVC level?

69
Exhaustion of
Administrative Remedies (Cont’d)

Courts have established two rules that are
favorable to claimants:
BVA is required to address all legal theories
reasonably raised by the evidence even though the
claimant did not argue these legal theories
 TDIU automatically considered if

Claimant has a disability rating that meets the minimum
schedular criteria for assignment of a TDIU rating and
 Evidence under VA control that the veteran is
unemployable due to service-connected disabilities

70
Exhaustion of
Administrative Remedies (Cont’d)

CAVC has jurisdiction to consider any issue
the claimant raises for the first time
Federal Circuit ruled that this does not mean it
must consider new issues
 But the Supreme Court ruled in a latter SSA case:

Claimant is not required to raise an issue
 Can raise the new issue for the first time in federal
court and the court must consider it.


CAVC is applying issue exhaustion principles
in a manner favorable to claimants
71
TOPIC E: Methods for
Obtaining Benefits After a
Final VA Denial
72
Major Options for a Claimant

Major Options:
Reopened claim at the RO
 CUE motion at the RO or BVA
 Filing a Notice of Appeal with the CAVC
 Filing a Motion for Reconsideration with the BVA


Key Factor - “Effective date” of benefits

Date from which benefits will be paid
73
Reopened Claim

Reopened Claim – Two Steps
 STEP
ONE: Has the claimant submitted
“new and material evidence”?
 “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
74
Reopened Claim (Cont’d)

“New and material” evidence does not need
to relate to every previously unproven
element of a claim


VA must determine whether the new evidence,
the previous evidence of record, and the
additional evidence that future VA assistance
could reasonably be expected to provide, raises a
reasonable possibility of substantiating the claim
VA must presume the credibility of the newly
submitted evidence
75
Reopened Claim (Cont’d)

STEP TWO: De Novo Review


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
76
The Following are NOT Reopened Claims





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Claims for increased ratings
Pension claims for P & T disability ratings
TDIU claims
Service connection for the POW presumptive
diseases
Claims filed after a change in the substantive criteria
for entitlement to a benefit
Claim based upon a different factual basis or a
separate and distinctly diagnosed disease or injury
than a prior claim
77
Motion for Reconsideration


May move for reconsideration at anytime
Motion must be:
In writing
 Filed with the BVA Chairman and include





the veteran’s name
the VA file number
the date of the Board decision to be reconsidered
the alleged obvious error of fact or law or other
appropriate basis for reconsideration
78
Motion for Reconsideration (Cont’d)

Chairman may grant reconsideration:
Upon an allegation of obvious error of fact or law
 Upon discovery of new and material evidence in the
form of relevant records or reports of the service
department
 Upon an allegation that an allowance of benefits has
been materially influenced by false or fraudulent
evidence

79
Motion for Reconsideration (Cont’d)

If the Chairman orders reconsideration:
 BVA
decision is vacated
 Reviewed by a reconsideration panel
 Decides the case de novo
80
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”
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 BVA decision, file CUE
motion with the BVA in the first instance

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Revision of Decision
Based on CUE (Cont’d)

Final BVA decisions are subject to CUE
No time limit to file
 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
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CUE Pleading Requirements

CUE pleading requirements
 Clearly
and specifically allege the error or
errors of fact or law
 The legal or factual basis for such
allegations
 Why the result would have been manifestly
different but for the alleged error
83
CUE Case Law



Benefit-of-the-doubt rule does not apply
At the BVA, only one opportunity to raise an
allegation of CUE challenging a RO or BVA
decision on a particular claim
CUE does not exist merely because there has
been a favorable change in VA’s or court’s
interpretation of a statute or regulation after
RO or BVA issued decision being challenged
84
Three Kinds of CUE

CUE in a Finding of Fact:

Claimant must assert more than a disagreement as
to how the facts were weighed or evaluated

All of the evidence in the record as it existed at
the time of the challenged adjudication must
support the conclusion that the factual finding is
erroneous
85
Three Kinds of CUE (Cont’d)

CUE in a Conclusion of Law:
 Must
show that the relevant “statutory or
regulatory provisions extant at the time were
incorrectly applied”
 A breach of the duty to assist cannot be a
basis for a CUE motion
86
Three Kinds of CUE (Cont’d)

CUE based on VA failure to sympathetically
review the record to determine all claims
reasonably raised by the record:
 File
a CUE claim challenging the RO decision
that should have, but failed to infer and
decide the claim for benefits for a particular
disability
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Success in a CUE Claim


Once CUE is established, the prior decision is
“revised to conform to what the decision should
have been”
VA then has a duty to assist prior to assigning a
disability evaluation for the relevant retroactive
period
88
CAVC Review of a CUE Claim

CAVC Review:
Reviews Board decisions on CUE under arbitrary,
capricious, an abuse of discretion, or otherwise
not in accordance with law standard
 Certain aspects of a CUE decision receive de novo
review

whether a claimant has presented a valid CUE
allegation
 whether a law or regulation was not applied or was
applied incorrectly

89
One Further Restriction


A CUE claim cannot be brought against a final,
unappealed RO decision where the BVA has
subsequently reopened the claim, considered it
de novo, and denied the benefits
In this case the CUE claim must be lodged
against the later BVA decision
90
TOPIC F: Attorney
Representation of a VA
Claimant
91
Admission of Attorneys to
Represent VA Claimants before the VA
 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 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
92
To be Recognized by VA as the
Representative of a Particular Claimant
 Complete,
sign, and file a POA form (VA Form
21-22a)
 May
not designate a law firm as the representative
 POA stays in effect until specifically revoked
 Generally
only one representative is authorized
 Newest POA “constitute[s] a revocation” of old
POA
93
Representative of a
Particular Claimant (Cont’d)

Split Representation
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



Use VA Form 21-22a to limit the scope
May cause some confusion at the VARO
94
Restrictions on
Charging a VA Claimant a Fee
 Preparation


of and filing a claim:
No fee may be charged
If an NOD is filed after June 20, 2007:
Attorney may charge a reasonable fee
 Post-6/20/07 NOD required to charge fees for
claim to reopen or claim for increase in rating


Fees may be charged to prepare a CUE claim; an
NOD is not a prerequisite
95
What is a VA Claims Folder?
 Once
a veterans files a claim, the VA creates a
“claims folder” for the veteran

All submitted and VA-created materials related to
ANY of the veteran’s claims for benefits are
included in the veteran’s (one and only) claims folder
96
Obtaining the VA Claims File
 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
 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
97
Obtaining the VA Claims File (Cont’d)
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

98
How to Review a VA Claims File
 Preliminary





advice
Keeping track of relevant information
Date-of-receipt stamps
Initial review
Read the most recent decision
Check basic entitlement
99
How to Review a
VA Claims File (Cont’d)

Digging into the C file


DD Form 214
Claims for benefits







Lay statements
Rating decisions, narrative, rating codes
Notice of decision
Appellate issues, Notice of Disagreement
SOC and SSOCs
Substantive appeal, Transcript of hearing
BVA decision
100
How to Review a
VA Claims File (Cont’d)
 Second
review
 Service Medical Records (SMRs)





Entrance examination
Report of medical history
Clinical records
Military medical reports
Discharge examination
101
How to Review a
VA Claims File (Cont’d)

Medical Records – In General

Medical abbreviations and terminology
“Impression”
 “Rule out” – (R/O)
 Handwriting issues


Post-Service Medical Records
VA Examination reports and QTC examinations
 VA outpatient (OPT) records
 VA Medical Center Reports (VAMC)
 Private Medical Reports

102
TOPIC G: General
Advocacy Tips for
Attorneys Practicing Before
the VA
103
Navigating the VA Claims System
 VA
work credits
 Bias against lawyers
 Instructing VA to send correspondence
only to you
 Easy adjudications
 Pressure to produce by VA managers
104
Navigating the
VA Claims System (Cont’d)

Institutional bias against certain types of claims
Alcohol and drug use
 PTSD claims
 TDIU claims
 Claims for secondary service connection
 Claims for delayed direct service connection
 Evaluation of back conditions and mental
conditions
 Where lay evidence is used to support a factual
conclusion

105
VA Employees

How to Interact with VA Employees
The last two numbers in the veteran’s claim
number
 Decision Review Officers (DROs) - the very
informal VA regional office (RO) de novo hearing
 Once your practice is established, if possible, ask
for a meeting with the “Service Center Manager”

106