Transcript Persian Gulf War Claims and New Presumptive Diseases

Representing Veterans
Before the VA on Claims for
Disability Benefits
Presented by Bart Stichman
National Veterans Legal Services Program
Major VA Benefit Programs
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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
Service-Connected
Disability Compensation
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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
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Status as a “Veteran”
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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)
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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)
Overview of Entitlement Criteria
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Veterans are entitled to compensation for
disabilities incurred in or aggravated during
period of active military, naval, or air
service
Entitlement Criteria (Cont’d)
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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)
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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
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Three Criteria
for Service Connection
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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
Three Criteria for
Service Connection (Cont’d)
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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
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
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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
Five Ways To Establish a
Disability is Service-Connected
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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
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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)
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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
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Five Ways To Establish a
Disability is Service-Connected (Cont’d)
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Statutory Presumption:
 Chronic
Diseases
 Tropical Diseases
 POWs
 Persian Gulf Veterans
 Radiation-Exposed Veterans
 Exposure to Herbicide Agents (Agent
Orange)
Five Ways To Establish a
Disability is Service-Connected (Cont’d)
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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)
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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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Establishing
the Appropriate Disability
Rating Percentage
Establishing the
Appropriate Percentage of Disability
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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
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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
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. . . .”
Disability Payments
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Disability compensation is not taxable and is
not subject to garnishment or attachment
The level of payments is fixed by statute
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The following rates are effective 12/1/2013
10% combined rating pays $131 per month
 50% combined rating pays $822 per month
 100% combined rating pays $2,858 per month
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Additional Compensation
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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
Eligibility for Increased or
Special Monthly Compensation
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Increased or SMC above 100% amount:
Aid and Attendance
 In other situations
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Total Disability Based on
Individual Unemployability (TDIU)
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TDIU - 100% rating even though the serviceconnected condition(s) are rated less than
100%
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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)
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To qualify:
Unable to engage in a substantially gainful
occupation (SGO); and
 Veteran has:
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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
Reevaluation of Disability
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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
VA Claims Adjudication
Process
Adjudication Process at the VARO
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The process begins with receipt of a claim
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Formal Claim
Informal Claim
Both formal and informal claims must show:
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an intent to apply for benefits
an identification of the benefits sought
a communication in writing
Adjudication at the VARO (Cont’d)
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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
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Administrative Appellate Process
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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)
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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)
Administrative
Appellate Process (Cont’d)
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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
Administrative
Appellate Process (Cont’d)
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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
Regional Office Hearings
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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”
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Substantive Appeal - VA Form 9
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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
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Substantive Appeal (Cont’d)
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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)
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Board of Veterans’ Appeals
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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
Board of Veterans’ Appeals (Cont’d)
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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
Board of Veterans’ Appeals (Cont’d)
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Appellant may request an IME opinion
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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
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Board of Veterans’ Appeals (Cont’d)
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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
Board of Veterans’ Appeals (Cont’d)
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Statistical Summary of BVA Dispositions:
 Allow/grant
in ~28% of cases
 Remanded ~44% of cases
 Denied ~24% of cases
 An additional ~4% were disposed of through
other means
Methods for Obtaining
Benefits After a Final VA
Denials
Major Options for a Claimant
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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
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Key Factor - “Effective date” of benefits
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Date from which benefits will be paid
Reopened Claim
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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
Reopened Claim (Cont’d)
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STEP TWO: De Novo Review
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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
Revision of Decision Based on CUE
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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)
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Final BVA decisions are subject to CUE
No time limit to file
 BVA’s disposition of the CUE motion is
subject to CAVC review
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CUE must be based on the record that was
before the adjudicator at the time of
original decision making
CUE Pleading Requirements
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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
Attorney Representation of
a VA Claimant
Admission of Attorneys to
Represent VA Claimants before the VA
 Two
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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
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
Representative of a
Particular Claimant (Cont’d)
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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
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Use VA Form 21-22a to limit the scope
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
 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
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
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Judicial Review of a Final
BVA Decision
Denying Benefits
The U.S. Court of Appeals
for Veterans Claims (CAVC)
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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
Jurisdictional Requirements
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Two Jurisdictional Requirements
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A final BVA decision
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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
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