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What Veteran Should Know About Sources of Authority to Veterans Disability Claims

Acts of Congress

Although many acts of Congress have had some impact on the law governing veterans’ benefits, three acts define the current VA benefits adjudication system.  The Veterans’ Judicial Review Act of 1988 (“generally referred to as the “VJRA”).  Pub. L. No. 100-687, 102 Stat. 4105 (1988).  Among other things, the VJRA:

  1. removed the bar to paid representation of veterans by attorneys and allowed a reasonable fee to be paid;
  2. created a court to review decisions of the Board of Veterans’ Appeals; and
  3. opened a path to higher level review by the United States Court of Appeals for the Federal Circuit and the United States Supreme Court.

The Veterans Claims Assistance Act of 2000 (the “VCAA”) explicitly established the VA’s duty to assist veterans with their claims.  Pub. L. No. 106-475, 114 Stat. 2096 (2000).  Finally, the Veterans Benefits, Health Care, and Information Technology Act of 2006 permitted veterans to retain paid legal counsel following the filing of a Notice of Disagreement instead of having to wait until a Board denial.  Pub. L. No. 109-461, 120 Stat. 3403 (2006).

Statutes

Acts of Congress are not generally constructed in a way to be directly useful in resolving specific complaints or applications for benefits.  In many acts, the bulk of the language is detailed directions on how to amend existing statutes to add or delete a word, a phrase, or a complete section.  It is only after the directions contained in an act are implemented in a “statute” that a complete process can be applied to specific cases.  The entire set of statutes is called the United States Code (“USC”).

For VA, all of the applicable statutes incorporating Congress’ directions regarding VA benefits are located in Title 38 of the United States Code.

Regulations

As with other administrative agencies, VA actions are governed by both “regulations” (also called “rules”) and “informal” internal guidance such as policies, office manuals, and management directives.  The Administrative Procedure Act (APA) mandates that federal agencies publish their substantive rules, and amendments thereof, in the Federal Register, to provide notice to affected citizens and the opportunity to comment. See 5 U.S.C. §§ 552, 553; Morton v. Ruiz, 415 U.S. 199, 232 (1974) (APA provides that “administrative policies affecting individual rights and obligations be promulgated pursuant to certain stated procedures so as to avoid the inherently arbitrary nature of unpublished ad hoc determinations”).  The VA’s rules are found in Title 38 of the Code of Federal Regulations.  The reference is often shortened to “38 C.F.R.” or “38 CFR” followed by the section number (for example, 38 C.F.R. § 3.103, 38 CFR 3.103, or 38 C.F.R. section 3.103).  These rules must comply with the statutes in Title 38 of the United States Code, which is often similarly shortened to “38 U.S.C.” or “38 USC.”

Although it was VA policy to comply voluntarily with the APA since 1972, VA was not otherwise required by law to comply with the APA until the Veterans’ Judicial Review Act (VJRA) became effective in September 1, 1989. Compare Administrative Procedure Act, Pub. L. No. 89–554 (1966) (excluding matters relating to “benefits” from the APA), with Veterans’ Judicial Review Act, Pub. L. No. 100–687 (1988) (subjecting VA to the APA); see also 38 C.F.R. § 1.12 (1972) (“It is the policy of the Department of Veterans Affairs to afford the public general notice, published in the

Federal Register, of proposed regulatory development, and an opportunity to participate in the regulatory development in accordance with the provisions of the Administrative Procedure Act (APA). All written comments received will be available for public inspection.”). Thus, until passage of the VJRA, VA rules and regulations lived in “splendid isolation,” generally unconstrained by judicial review.  Brown v. Gardner, 513 U.S. 115, 122 (1994); see Pub. L. 100–687 (permitting judicial review by this Court and the U.S. Court of Appeals for the Federal Circuit (Federal Circuit)).

Given this unique history, it is not a surprise that substantive rules promulgated before the APA might be contained in the M21–1MR or a directive, letter, or other document (as described below).  See Buzinski v. Brown, 6 Vet. App. 360, 369 (1994) (noting that Rank v. Nimmo, 677 F.2d 692, 698 (9th Cir. 1982), held that “VA handbooks, circulars, and manuals” may have the “force and effect of law” if they prescribe substantive rules); Fugere v. Derwinski, 1 Vet. App. 103, 107 (1990) (the placement of a rule “in a procedural manual cannot disguise its true nature as a substantive rule”), aff’d, 972 F.2d 331 (Fed.Cir.1992).

Moreover, substantive rules promulgated prior to the statutory requirement that VA comply with the APA remain binding on the Secretary until they properly are revoked or amended.  See Fugere, 1 Vet. App. at 110 (noting that a substantive rule may not be rescinded until the Secretary has “‘published notice of his intention to rescind it, invited comment, put that comment … on the public record, and published a reasoned and reviewable explanation of his decision to rescind [it].'” (quoting Nat’l Wildlife Fed’n v. Watt, 571 F. Supp. 1145, 1156 (D.D.C. 1983))).  This is consistent with procedural regularity and basic fair play required in adjudicating veterans’ claims. See Thurber v. Brown, 5 Vet. App. 119, 123 (1993) (holding that veterans in particular are entitled to “procedural regularity and basic fair play” in the adjudication of their claims); Fugere, 1 Vet. App. at 108 (“‘Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures.'” (quoting Morton, 415 U.S. at 235)).

Further, it is clear a properly promulgated regulation trumps an M21–1MR provision or other VA directive that plainly is erroneous or inconsistent with regulation.  Compare Smith v. Shinseki, 647 F.3d 1380, 1385 (Fed. Cir. 2011) (“VA interpretations of its own regulations in its Adjudication Procedures Manual [M21–1MR] are ‘controlling’ as long as they are not ‘plainly erroneous or inconsistent with the regulation.'” (citing Thun v. Shinseki, 572 F.3d 1366, 1369 (Fed.Cir.2009) (quoting Auer v. Robbins, 519 U.S. 452, 461 (1997)))), Haas, 525 F.3d at 1197 (holding that an M21–1MR requirement inconsistent with regulation confers no rights on claimant), and Fournier, 23 Vet. App. at 487–88 (discussing Haas), with Cohen v. Brown, 10 Vet. App. 128, 139 (1997) (“Where the Manual M21–1MR and the regulation overlap, the Manual M21–1MR is irrelevant …. except where the Manual M21–1MR is more favorable to the claimant.”).  See also Castellano v. Shinseki, 25 Vet. App. 146, 150-52 (2011).

The BVA is not free to ignore regulations that the Secretary has promulgated consistent with his statutory authority.  Rather, the “BVA is required to apply all relevant statutes and regulations appropriate to the particular case before it.”  Wilson (Merritte) v. West, 11 Vet. App. 383, 385 (1998) (holding that failure of VA to follow its own regulations in terminating dependency and indemnity compensation benefits, based on severance of service connection, constituted prejudicial error); see also Patton v. West, 12 Vet. App. 272, 283 (1999) (“the Court believes that substantial interests of justice dictate that the Court require the Secretary to adhere to his own regulatory provisions”); Buzinski v. Brown, 6 Vet. App. 360, 367 (1994) (“we agree that … VA is obligated to follow the regulations it promulgates” (citing United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 269 (1954); Vitarelli v. Seaton, 359 U.S. 535, 539 (1959))).

OGC Opinions

The Office of General Counsel of the Department of Veterans Affairs (“OGC”) is the Secretary’s law firm.  One role of OGC is to issue written legal opinions on questions of law raised in adjudicating benefits claims.  The General Counsel’s interpretations on legal matters in those opinions are binding on VA officials, the Board, and VA regional offices in adjudications until a change in the law by Congress, a Court decision, or a later written OGC opinion.

The Court, however, is not bound by VA General Counsel precedent opinions.  Hatch v. Principi,18 Vet. App. 527, 531 (2004); see also Theiss v. Principi, 18 Vet. App. 204, 210 (2004); Cottle v. Principi, 14 Vet. App. 329, 335 (2001); Sabonis v. Brown, 6 Vet. App. 426, 429 (1994); see also38 U.S.C. §§ 7104(c), 7261.  The Court reviews the Secretary’s interpretation of law de novo.  See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (en banc).  Hatch v. Principi, 18 Vet. App. 527, 531 (2004).

M21-1MR Manual

It is very difficult to run an organization as large as the VA with only the formal rules in the Code of Federal Regulations.  So, as with many other federal agencies, VA has developed all sorts of “informal” guidance for its employees to use in performing day-to-day work.  This guidance can be in the form of manuals, “letters,” “memos,” or policies.  Although no one challenges the usefulness of such “guidance,” whether or not these types of documents are the “law” can be an important issue in litigation where a claimant challenges the way VA handles his or her claim.

VA has developed a detailed procedures manual, the Compensation and Pension Manual Rewrite (designated by VA as the “M21-1 MR” manual), to guide its raters and reviewing officials who adjudicate benefits claims.  The M21-1 MR is primarily “an internal manual used to convey guidance to VA adjudicators [and] not intended to establish substantive rules beyond those contained in statutes and regulations.”  See Guerra v. Shinseki, 642 F.3d 1046, 1050-51 (Fed. Cir. 2011) (quoting 72 Fed. Reg. 66,218 (Nov. 27, 2007)).  In other words, the M21-1MR is only guidance for VA personnel and the guidance in the M21-1MR does not replace or overrule Congress’s statutes or VA’s regulations.

Because it can take a long time and significant effort to complete a rulemaking and because many VA rules were created before Court review was available, VA sometimes tries to enforce M21-1MR guidance as if it were a regulation.  The Court, however, has determined that the placement of a rule “in a procedural manual cannot disguise its true nature as a substantive rule,” Fugere v. Derwinski, 1 Vet. App. 103, 107 (1990), aff’d, 972 F.2d 331 (Fed. Cir. 1992), because substantive rules are deemed “the equivalent of VA regulations.”  Cohen v. Brown, 10 Vet. App. 128, 139 (1997).  This means that if there is a conflict between the M21-1MR manual and a substantive rule (a statute in the U.S.C. or a C.F.R. rule), the statute or rule prevails.  In other words, just because the VA says that the M21-1MR requires something does not mean that the law necessarily requires the same thing.  If the issue is important to an award, a claimant should do further research to see if the relevant regulation and statute require a different action or result.

Other VA Policies, Procedures, and Guidance

In certain circumstances, M21-1MR provisions may be construed as “the equivalent of Department regulations.”  See Hamilton v. Derwinski, 2 Vet. App. 671, 675 (1992) (holding that substantive rules in the M21-1MR Manual are binding on VA).  As such, the Board errs when it fails to consider a M21-1MR provision’s possible relevance with respect to VA’s compliance with the duty to assist.  See 38 U.S.C. § 7104(a).  Likewise, the Board should consider the applicability of Fast Letters or predecessors.  Id.; see also United States v. Picciotto, 875 F.2d 345 (D.C. Cir. 1989).  Such a policy does not create “new substantive law” it merely clarifies the applicable regulation by “provid[ing] concrete guidance as how” the regulation should “be applied in practice.”  Stinson v. United States, 508 U.S. 36, 44 (1993) (holding that the sentencing commission’s commentary to the sentencing guidelines is treated as an agency’s interpretation of its own legislative rule).

Moreover, a handbook “reflect[s] the agency’s fair and considered judgment on the matter in question.”  Auer v. Robbins, 519 U.S. 452, 462 (1997).  When a handbook was created prior to pending litigation and the policy prescribed therein is consistent with the information provided in other guidance documents issued by the Secretary, the handbook is “in no sense a ‘post hocrationalizatio[n]’ advanced by an agency seeking to defend past agency action against attack.”  Auer, 519 U.S. at 462 (quoting Bowen v. Georgetown Univ., 488 U.S. 204, 212 (1988)).  In order for VA handbooks, circulars, and manuals to have the “force and effect of law” they must “prescribe substantive rules—not interpretive rules.”  Rank v. Nimmo, 677 F.2d 692, 698 (9th Cir. 1982).  The Rank court found that the VA Lender’s Handbook and VA Circular 26–75–8 did not prescribe substantive rules but were “general statements of agency policy and procedure” intended as a “general guide to VA employees,” and thus there was no enforceable duty on the part of the VA to “take all reasonable measures to avoid foreclosure.”  Rank II, 677 F.2d at 698.

The distinction set out in Rank II between “substantive” and “interpretive” rules is similar to this Court’s analysis.  Fugere v. Derwinski, 1 Vet. App. 103, 107–08 (1990) (noting the distinction between “substantive” and “interpretive” rules for enforceability purposes, and holding that a VA manual provision regulating the award of benefits for defective hearing “affected a substantive right and [that] its placement in a procedural manual [could not] disguise its true nature as a substantive rule.”); see also Hayes v. Brown, 4 Vet. App. 353, 360 (1993); Suttmann v. Brown, 5 Vet. App. 127, 138 (1993).  The VA issuances discussed in Rank II, 677 F.2d at 694–95, imposed no specific mandatory duties on VA employees as distinguished from providing general guidance.  Buzinski v. Brown, 6 Vet. App. 360, 369 (1994).

However, “not all agency policy pronouncements which find their way to the public can be considered regulations enforceable in federal court.”  Chasse v. Chasen, 595 F.2d 59, 62 (1st Cir. 1979).  “[I]n order for VA handbooks, circulars, and manuals to have the ‘force and effect of law’ they must ‘prescribe substantive rules—not interpretive rules.'” Buzinski v. Brown, 6 Vet. App. 360, 369 (1994) (quoting Rank v. Nimmo, 677 F.2d 692, 698 (9th Cir.1982)).  Such a result is also possible as to VA issuances that predate the VCAA, should a VA adjudication under the implementing regulations provide a result less favorable than would have been provided under those pre-VCAA issuances.  See, e.g., McCormick v. Gober, 14 Vet. App. 39 (2000) (holding that VBA Letter 20-99-60 was binding VA issuance although not adopted after notice and opportunity for public comment); Morton, supra (as to withdrawal of opinion); Patton v. West, 12 Vet. App. 272, 277-84 (1999) (holding certain parts of VA Adjudication Procedure Manual, M21-1MR, were binding on VA); Cohen (Douglas) v. Brown, 10 Vet. App. 128, 139 (1997) (same).  Holliday v. Principi, 14 Vet. App. 280, 292 (2001) overruled by Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).

The VA “Clinician’s Guide” is an instructive, but not a binding, document and allows each VA examiner discretion as to how to conduct an examination in an individual case.  See Allin v. Brown, 6 Vet. App. 207, 214 (1994).  The first chapter of the Guide states, “[t]he Clinicians Guide and any of its parts (worksheets) are intended solely as a guide for clinicians, and it is not legally binding on a clinician to perform all portions of the examination protocol.”  VA Clinician’s Guide, § 1.1 (2002).  Moreover, to the extent that an appellant disagrees with the qualifications or conclusions of the medical examiner, the competency of VA examiners is to be presumed, based on the presumption of regularity, in the absence of evidence to the contrary.  Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009); Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (citing Hilkert v. West, 12 Vet. App. 145, 151 (1999), aff’d per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table)). Because the examiner is presumed competent, the examiner’s medical judgments, such as what tests to perform and what details of an examination are salient, are also presumed to be sound in the absence of sufficient contrary evidence.  See, e.g., Sickles v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011) (due to presumed competency of medical examiner, Board was entitled to presume that a VA medical examination was sufficiently informed by a physical examination or other diagnostic procedures selected by the examiner); see also Rizzo, 580 F.3d at 1292 (the presumption of regularity may be rebutted by the submission of clear evidence to the contrary).

You may also see references to “38 U.S.C.S.” (United States Code Service”) or “38 U.S.C.A.”  (United States Code Annotated).  These are versions of the United States Code published by non-governmental organizations and which provide additional comments or references in addition to the statute itself.

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision!

Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims!

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Disabled Veterans Have the Right to be Heard with their Disability Claims

“Upon request, a claimant is entitled to a hearing at any time on any issue involved in a claim within the purview of part 3 of [title 38 of the Code of Federal Regulations.]”  38 C.F.R. § 3.103(c)(1).  “It is the responsibility of the [VA] employee or employees conducting the hearings to 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 [on appeal].”  38 C.F.R. § 3.103(c)(2).  This provision “imposes … two distinct duties on the hearing officer …:  The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked.”  Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (per curiam).  These requirements are designed “‘[t]o assure clarity and completeness of the hearing record.'”  Thomas v. Nicholson, 423 F.3d 1279, 1285 (Fed. Cir. 2005) (quoting 38 C.F.R. § 3.103(c)(2)); see also Bryant, 23 Vet. App. at 499.

“The entire thrust of the VA’s nonadversarial claims system is predicated upon a structure which provides for notice and an opportunity to be heard at virtually every step in the process.”  Thurber v. Brown, 5 Vet. App. 119, 123 (1993); see Cushman v. Shinseki, 576 F.3d 1290, 1300 (Fed. Cir. 2009) (Due Process Clause applies to proceedings for veterans benefits); Gambill v. Shinseki, 576 F.3d 1307, 1310-11 (Fed. Cir. 2009) (same).  The Fair Process doctrine does not prohibit administrative procedures based on a claimant’s perception that they may be “unfair.”  Rather, the doctrine provides claimants with the procedural protection of requiring that they receive notice and an opportunity to be heard, not just once, but “at virtually every step in the process.”  Thurber, 5 Vet. App. at 123.

In order to follow this regulatory mandate, a hearing officer “cannot ignore a lack of evidence in the record on a material issue and not suggest its submission, unless the record (or the claimant at hearing) clearly shows that such evidence is not available.”  Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010) (per curiam).  In regard to the duty to explain issues fully, the Court has stated that when the RO has denied a disability claim because there is no current disability, no nexus to service, or no incident in service, etc., then the Board hearing officer should explain that the claim can be substantiated only when the claimed disability is shown to exist and shown to be caused by an injury or disease in service, and the Board hearing officer’s explanation and discussion should be centered on these issues.  Bryant, 23 Vet. App. at 496.  In regard to the duty to suggest the submission of overlooked evidence, the Court in Bryant clarified that “nothing in the regulation limits the Secretary’s duties to advise the claimant to submit evidence only to those situations when the existence of such evidence is raised at the hearing;” rather, the hearing officer “must suggest the submission of evidence when testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record.” Bryant, 23 Vet. App. at 496- 97.

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision!

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How Due Process Works in Veterans Disability Compensation Claims

The entire thrust of the VA’s nonadversarial claims system is predicated upon a structure which provides for notice and an opportunity to be heard at virtually every step in the process.  The Secretary shall provide notice of a decision regarding a claim for benefits and “an explanation of the procedure for obtaining review of that decision.”  38 U.S.C. § 5104(a); see Rosler v. Derwinski, 1 Vet. App. 241, 249 (1991).  “Each appellant will be accorded hearing and representation rights pursuant to the provisions of [38 U.S.C. Chapter 71] and regulations of the Secretary.”  38 U.S.C. § 7105(a).  The VA regional office (RO) must provide notice of the right to appeal in regular and in simultaneously contested claims.  38 C.F.R. §§ 19.25, 19.100.

In simultaneously contested claims, the VARO must provide notice of appeal to other contesting parties.  38 C.F.R. § 19.102.  It must provide notification of the filing of an administrative appeal.  38 C.F.R. § 19.52.  It must furnish a Statement of the Case (SOC) to a claimant, 38 C.F.R. § 19.30, which “must be complete enough to allow … appellant to present written and/or oral arguments before the [BVA].”  38 C.F.R. § 19.29.  In simultaneously contested claims, each interested party must be furnished with an SOC.  38 U.S.C. § 7105A; 38 C.F.R. § 19.101.

A Supplemental SOC (a “SSOC”) is required when an appellant submits additional evidence to the VARO prior to the transfer of appellant’s records to the BVA, 38 C.F.R. § 19.37(a), and when a BVA remand of a case to the VARO results in additional evidentiary or procedural development and continuation of the denial of benefits, 38 C.F.R. § 19.38; see generally 38 C.F.R. § 19.31 (“a period of 60 days … will be allowed for response”); 38 C.F.R. § 20.302(c) (but only 30 days, in the case of a simultaneously contested claim, 38 C.F.R. § 20.501(c)).

If the BVA questions the adequacy of appellant’s substantive appeal, appellant is provided “notice … and a period of 60 days … to present written argument or to request a hearing to present oral argument.”  38 C.F.R. § 20.203.  The Board shall decide an appeal “only after affording the claimant an opportunity for a hearing.”  38 U.S.C. § 7104(a).  In connection with the right to a hearing, a claimant has the right to present evidence, testimony, and argument in support of a claim.  38 C.F.R. § 20.700.

A claimant has the right to notification of the time and place of the hearing on appeal.  38 C.F.R. § 20.702(b).  A claimant has the right to notification of the certification of appeal and transfer of the appellate record to the BVA.  38 C.F.R. § 19.36.  If a “Travel Board” hearing is held, a claimant must be notified of its time and place.  38 C.F.R. § 19.76.  When a “Travel Board” hearing is requested, a claimant must be furnished with an SOC if not previously furnished.  38 C.F.R. § 19.77.

“After reaching a decision in a case, the Board shall promptly mail a copy of its written decision to the claimant.”  38 U.S.C. § 7104(e).  A claimant is entitled to a hearing if a motion for reconsideration of a final BVA decision is granted.  38 C.F.R. § 20.1003.  The BVA may vacate an appellate decision which denies “due process of law” upon the request of appellant, or on the BVA’s own motion.  38 C.F.R. § 20.904.  Thurber v. Brown, 5 Vet. App. 119, 123-24 (1993).

As written, the due process provisions of 38 C.F.R. section 3.103 apply only to benefits and relief under part 3 of title 38 of the Code of Federal Regulations.  Part 3 is entitled “ADJUDICATION,” and is divided into two subparts: subpart A, which deals with compensation, pension, and DIC, and subpart B, which deals with burial benefits.  As written, section 3.103(b)(2) requires pre-termination/reduction notice only where there is a termination or reduction of an “award of compensation, pension or [DIC].”  Grovhoug v. Brown, 7 Vet. App. 209, 214 (1994).

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision!

Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims!

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What Veterans Must Know About VA Disability Denials

When trying to file for disability benefits, the odds might seem to be stacked against you.

Part of the problem is because the VA is so backlogged with claims, the “Decision Review Officers” don’t have the time to fully develop each case.

Here are the 10 most common reasons for Veteran’s disability claim denial.

  1. Inadequate information provided in your claim—it’s very possible that you simply didn’t provide enough medical evidence in your disability claim for the VA to make an informed decision regarding your true level of disability.
  2. Missed the deadline—Appeals on denied Veteran’s disability claims must be filed within one year of the date of the ratings decision. However, don’t wait until the last minute to file your appeal as you will waste months.
  3. Disability is ruled as non-service connected—to receive Veteran’s disability, you have to show that your disability originated from an event that occurred during service. Sometimes, the VA will try to rate your disability as non-service connected, so you have to appeal the decision of the classification of your disability. Frequently, it is necessary to get “buddy statements” to prove certain disabling events occurred while in service.
  4. Symptoms aren’t deemed severe enough and given an improper rating—In some cases, the VA will recognize that you’re experiencing certain symptoms from a service-related disability, but they’ll state that your symptoms aren’t at a degree or level severe enough to warrant disability compensation or a higher disability rating.
  5. Mistaken reliance on the VA to send the Vet for a Medical Exam. Frequently the key to proving service connection of a disability is getting a “medical nexus exam.” This is where a doctor gives a written opinion as to whether a current medical condition is service connected. The VA often does not provide this and it is necessary for the Vet to get it themselves.
  6. Ruled a pre-existing or non-aggravated condition—The VA may determine that a pre-existing condition contributed to your disability, meaning that, in their view, you’re not entitled to any compensation because your condition is not service connected.
  7. Filled out the wrong forms—There are certain forms that must be filed before the process can be started. Filing the wrong forms or completing your forms incorrectly can lead to a veteran’s disability claim denial.
  8. Lack of professional representation—It’s certainly within your rights to file your claim on your own, but it’s often a good idea to enlist the help of a professional so you don’t make any costly mistakes that cause delays or a claim denial. Experienced representatives know how to gather and present evidence of service connected disability effectively.
  9. Mistaken reliance on the VA to fulfill their “Duty to Assist” the Veteran. The VA has a legal duty to assist the veteran in developing their disability claim. This means the VA is supposed to collect the veteran’s military and medical records and anything else necessary to develop their case. This is a mistake as the VA rarely fulfills this duty. The smart thing to do is to collect your own medical and military records and seek your own doctors opinions as to why you are disabled.
  10. Claim is still being processed—There’s a chance that your disability claim hasn’t been denied at all. It might just still be in processing. Processing for claims can sometimes take years, so you need to check on the status of your claim before taking any further action.

So, what should you do if you’re facing disability claim denial? The most important thing is to not give up.

The truth is that a lot of Veteran’s disability claims are denied at first, but just because your claim is denied doesn’t mean that your claim isn’t justified. You have the right to appeal your claim. Don’t give up. With perseverance, you stand a chance of winning your claim and getting the VA disability benefits you deserve.

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision!

Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims!

Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency

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What Veterans Must Know About VA 100 Percent Disability Ratings

When it comes to the Veterans Affairs 100 percent disability ratings, things can be confusing.  Veterans can find it difficult to determine whether or not they can work if they are rated at 100%. To better understand which 100 % rating is best for you, let’s consider the types of 100 percent disability ratings that the VA uses to determine if a Veteran can return to work or not.

Types of 100 Percent Disability Ratings
Service Connected Disabilities – This is when a Veteran’s a single service connected disability or alternatively, the Veteran’s combined service connected disabilities total to 100 percent. Once the Veteran reaches 100 percent service connected disability this way, he or she can work full time.

Total Disability/Individual Unemployability (TDIU or IU) – This type of disability rating is a bit more complicated than regular service connected disability and is considered when a Veteran’s claim is made which requests that he or she be paid the full 100 percent rate even though his or her disabilities fail to combine to 100 percent. A Veteran may make a claim for the rating when he or she is unable to maintain what the VA considers “gainful employment” because the service connected disability keeps them from doing so. Veterans granted 100% disability under IU are not allowed to work full-time due to the nature of his or her service connected disabilities.

In order to qualify for TDIU or IU, the Veteran must have one disability rated at 60 percent or one at 40 percent with enough additional disabilities that create a rating of 70 percent or above. Even though the basic criteria for IU are met, this does not mean that 100 percent disability rating will be awarded. The Veteran must provide medical evidence which shows that he or she is unable to work in both physical and sedentary settings. Though the qualifications may seem stringent, IU can still be awarded to those Veterans who do not meet the percentage criteria if the disabilities present a distinctive hindrance to gainful employment.

Receiving an IU 100 percent rating does not create a bar to all employment. You can still work “marginal” or part time employment with a certain amount that can be earned annually.

Temporary 100 Percent Disability Rating– This rating is given to Veterans that have been hospitalized for 21 days or longer or had surgery for a service connected disability that requires at least a 30 day convalescence period. The VA will pay the Veteran at the 100 percent rate for the extent of the hospital stay or convalescence period.

Permanent and Total Rating– The Permanent and Total rating is when the VA recognizes that the Veterans service connected disabilities have no probability of improvement and that the Veteran will remain at the 100 percent rating permanently without the need for future examinations. The P & T rating will also provide additional benefits including the Chapter 35 education benefits for dependents.

Veterans will sometimes make the mistake of requesting P&T 100 percent ratings because they want education benefits for their dependents. Keep in mind that when requesting P&T, all of your service connected records will be re-evaluated and if improvement is found in subsequent evaluations, the 100 percent rating can be reduced.

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision!

Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims!

Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency

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What Veterans Must Know About the Lengthy Process of VA Appeals

When you receive a decision letter on a VA disability claim, the letter tells you to file a Notice of Disagreement (NOD) if you disagree with any point in the decision, such as denial of service-connection or in the percentage VA rated a specific condition. An NOD will start the lengthy appeals process. What they don’t tell you is that there is another, often better option. Decisions aren’t final until one year from the date of notification, so it’s usually far better to ask for a reconsideration of the decision if you can provide evidence as to why VA’s rationale for the decision was wrong.

Remember, however, it’s difficult to disagree with a percentage assigned for things such as joints, which are based on a VA Compensation and Pension (C&P) exam and involve range of motion, unless you contend the exam was inadequate. In that case, you’ll likely be afforded another exam, or, you can submit a Disability Benefit Questionnaire and records from your own doctor that contradict the findings of the VA exam.

An NOD must be sent within one year of the decision letter date. After several months, you’ll receive a letter from VA acknowledging receipt and asking which appeal process you prefer, the Decision Review Officer (DRO) or the Traditional Appeal. The DRO is at the local VA office that decided your claim, while the Traditional Appeal process will afford you a hearing with the Board of Veterans Appeals (BVA).

DRO decisions used to be quicker, but currently, they often take nearly as long as the BVA. If you are denied by the DRO, you can still proceed with the Traditional Appeal, but to save time, especially if your disagreement is not an obvious error and is more subjective, it’s often best to go straight to the Traditional Appeal. Your NOD will be reviewed by the local VA office, and if you’ve provided adequate evidence proving why their decision was wrong, you’ll receive a decision granting your appeal, though this can take a year or more.

If VA continues the denial, they’ll mail you a Statement of the Case (SOC) — a detailed explanation of the laws and regulations VA used to decide your claim. To “perfect” your appeal and get a hearing before the BVA, you must submit within 60 days the VA Form 9 that’s attached to the SOC. On this form you’ll elect which type of hearing you prefer: in Washington D.C. where the BVA is located; at your local VA office before a traveling BVA judge, or, via videoconference at your local VA office before a judge in Washington D.C. Videoconference is the quickest, though currently in Tennessee, the wait time from the submission of the Form 9 to hearing is about two years. A decision from the judge can take another year, and sometimes the decision will include a remand, where the judge orders additional exams or medical opinions before a final decision is made.

If the BVA denies your appeal, your last option is an appeal to the U.S. Court of Appeals for Veterans Claims, for which you’ll need an attorney.

Veterans often appeal on their own without understanding rating criteria or decisions, and this in part is why the appeal process is so lengthy, as the DRO or BVA must adjudicate all appeals and hold hearings regardless of the merits. As always, it’s best to consult an experienced veterans service officer who can advise you on the best course of action to take when you disagree with a decision.

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision!

Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims!

Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency

Posted on by BNG

The Appeals Process: Appeals at the Board of Veterans’ Appeals

There is a perception that a lot of the regional offices’ decisions are appealed to the Board of Veterans’ Appeals. This is not accurate. Historically, only 4 percent of all claims the Veterans Benefits Administration (VBA) decides are appealed to the board. The perception probably comes from the increasing number of pending appeals, but that growth is explained by looking at the math. In the last four years, VBA has completed more claims than ever before in its history. Because VBA has completed so many more claims, the volume of appeals has also increased, even though the rate of appeals of VA decisions has remained steady.

If after receiving a statement of the case (SOC) from the regional office you still are not satisfied with the regional office’s decision, you can file a VA Form 9, Appeal to the Board of Veterans’ Appeals, within 60 days from the date the SOC is mailed.

Appeals at the Board of Veterans’ Appeals
Once the board receives your appeal, it assigns a docket date based on the date VA received your Form 9. This date is important: under the law, the board must work appeals in docket order. Currently, the median, or middle, docket date of appeals the board is working is July 2014. Some newer appeals can be pushed to the front of the line: those from older Veterans and survivors, those who are terminally-ill or those who have documented financial hardship, etc. It’s important to know that if the board remands (returns) your appeal to the regional office to gather more evidence, you won’t lose your place on the board’s docket.

Just like in the regional offices, several Veterans service organizations are located at the board. If you choose not to have a hearing before the board, your representative will write a legal argument on your behalf. The board will consider that argument when it conducts its own de novo review of your claim. If you choose to have a hearing, your representative will help you explain your case at that hearing. VA will transcribe the hearing and put it in your file. The board can do one of three things: grant your appeal, deny your appeal or send (remand) it back to the regional office for more action.

If you disagree with the board’s decision, you may pursue an appeal to the Court of Appeals for Veterans Claims (CAVC). If the CAVC denies your appeal, you can appeal to the U.S. Court of Appeals for the Federal Circuit. If you lose the appeal there, you can petition the U.S. Supreme Court for review. The Supreme Court grants review in very few appeals. Generally, the Court of Appeals for the Federal Circuit and the U.S. Supreme Court review only legal matters in an appeal, not agency decisions.

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision!

Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims!

Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency

Posted on by BNG

Segmented Lanes: a Process for Claims

Working at one of the Big Six Veteran Service Organizations taught me a few things about VA. First, the regional offices that process compensation claims are not equal, some are more consistent. But the most important thing I learned during my three years representing Veterans who filed appeals to the Board of Veterans Appeals is this: NO CLAIM IS THE SAME. I learned while some claims may appear similar, little variances in each make all the difference.

The Veterans Benefits Administration’s Transformation Plan is change of giant proportions. We’ve tested and measured more than 40 initiatives that are in some phase of implementation. Each initiative falls into one of three categories: people, process, or technology. It’s not enough to change only our processes, update technology, or only change the way we train our employees. VBA Transformation must take place across all three fronts.

Segmented Lanes is one of our new processes that we have implemented at 16 regional offices. The rest of our regional offices get Segmented Lanes throughout 2013. When you file a claim or send evidence to support your claim, our Intake Processing Centers sort it into one of three Segmented Lanes: Express, Core, or Special Operations. This allows VBA to identify at the earliest possible point any Veteran who requires expedited handling, such as a Veteran experiencing financial hardship, a homeless Veteran, a Veteran over the age of 75 or a Veteran who has a terminal illness.

For the rest of us, Segmented Lanes helps get our claims processed faster, in the hands of the right processor, increases accuracy and standardizes the process across all regional offices. This means that the process at the New Orleans Regional Office is the exact same process at the Salt Lake City Regional Office.

The lanes break down like this:

Express Lane: claims that have one or two contentions, or fully developed claims (an example would be if a Veteran files for an increase in compensation for a back issue and is also seeking to have her left hip condition service connected)
Core Lane: claims that have three or more contentions, or any claim that does not meet the criteria for Express or Special Operations.
Special Operations: All claims that require special handling because of their nature (examples are Post Traumatic Stress Disorder associated with Military Sexual Trauma, former Prisoners of War, Traumatic Brain Injury).
Each lane has dedicated claims processors whose skills and expertise match the lane to which they are assigned. This is how VA will process claims more quickly and more accurately. While no claim is the same, certain aspects of processing are alike, so if you work similar claims the process naturally speeds up and quality increases. When I worked at the Board, I often worked several claims in a row for disorders that resulted from a Military Sexual Trauma because some of the same regulations applied to those claims (like rating criteria), even though the claims themselves varied dramatically. Not having to refer to different parts of the regulations saved time, but I also became really good at claims resulting from MST. If I worked at a regional office today, I would probably be in the Special Operations lane.

Another way the lanes are ensuring speed and quality is through our Fully Developed Claims program. FDCs are claims where the Veteran certifies at the time they submit the claim that he or she has provided all evidence. That certification allows VA to move forward without waiting the mandatory waiting period for the Veteran to submit evidence. Veterans can file an informal claim stating they intend to file a claim for benefits using FDC to preserve an effective date and allow them time to collect evidence. We have assigned these claims to the Express lane, allowing FDC claims to be determined in an average of 100 days.

Veteran Service Organizations are available to help Veterans, their families and survivors file claims using both the traditional process and the Fully Developed Claims process. They provide this service regardless of whether you are a member. Let them help you.

Segmented Lanes is just one part of our Transformation and as such and it alone will not eliminate the backlog. But collectively, the initiatives will give VA the ability to process all claims within 125 days at 98 percent quality.

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision!

Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims!

Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency

Posted on by BNG · 1 Comment

How Veterans Can Successfully File a VA Compensation Claim

There are two ways to file a VA compensation claim: print the 526EZ and mail/fax it, or submit it electronically through VA and DoD’s eBenefits web portal. Most Veterans opt for the former, cross their fingers, and hope for the best. But unless you are just leaving the military, with well-documented and easily accessible service treatment records, this isn’t the best approach.

Intent to file
The Intent to File is required, but here’s why it’s a good thing: It immediately establishes your effective date for pay purposes. Best of all, it only takes a few minutes to complete online in eBenefits. (You can submit your Intent to File online in eBenefits here)

We know that it may take you some time to gather all the evidence you need to support your fully developed claim (FDC), such as your service treatment records, private treatment records and DBQs, and written witness/buddy/commander/spouse/lay statements. The Intent to File for a VA compensation claim lets VA know that you are planning to file a claim, and it locks in your “backpay” date. You then have one year to complete your claim application.

What info does VA need from me?
To receive VA disability compensation, you must meet three criteria: an event in service that caused or aggravated a disability or illness; a current diagnosis of a medical disability or illness; and a medical opinion connecting the two (the latter as a result/because of the former).

Event in service is something that happened in service that caused or aggravated your current disability. For example, you fractured an ankle in service and now have arthritis in that ankle. Or, you served in Vietnam, were exposed to Agent Orange, and now have a disease that is considered presumptive for Agent Orange exposure;
A current VA or private doctor’s diagnosis showing that you have a medical condition related to the service event; and
A doctor’s opinion that the event in service and current diagnosis are connected. This is called the nexus. Unless the connection is obvious through your medical records, this opinion, or nexus, will usually come from your VA-scheduled Compensation & Pension (C&P) exam. For presumptive illnesses, VA presumes the connection between the documented event in service and the current diagnosed illness. In this case the nexus is established by law.
Without all three of these items, a VA compensation claim can’t be granted. It’s like a three legged stool – without any one of these legs, the stool will fall over. If you provide evidence of the first two items but not the third, VA will schedule you for a C&P exam to determine a doctor’s opinion for the third. Be aware that just because a doctor’s opinion is requested on service connection that that doesn’t mean a doctor will agree that your current condition is related to your service.

Write a statement in support of your claim
When filing your VA compensation claim, include a VA Form 21-4138. This is called the Statement in Support of Claim. It’s important to write a separate paragraph for each disability you are claiming. It’s equally important to explain how the event in service (be specific) affects your current disability or symptoms related to your injury or illness. Provide every piece of evidence from the event that you can think of, such as personnel records, award narratives, pictures, medical records, unit profiles, prescriptions, etc. If you don’t think this event is in your service personnel or medical records, find someone you served with to fill out a form to provide their witness statement to the event. While a witness statement alone usually is not enough to grant a claim, it can be combined with other evidence to strengthen a claim for service connection.

Your statement is considered evidence, just like your military or treatment records, and the rater will use it to make the decision. It also tells the rating team where to look in your records, and the timeframe for information to validate your claim.

Include medical records
VA can access treatment records from other VA and military medical facilities, but don’t assume that “VA has everything it needs.” Remember above: VA and military records are just one leg of the three-legged stool.

If you have your service medical records, include them as evidence. It also helps VA if you include where it was that you’ve been treated for your medical conditions on your application (name of treatment facility). You should also highlight the pages and passages that refer to your medical conditions, such as lab results and diagnoses, which may eliminate weeks or even months of processing time. Providing all of this information with your claim will help the rating team process your claim more quickly.

If you don’t have your service records, VA will request them from your military branch archives, but this can take several weeks or more. If you don’t have them and would prefer to request them yourself, contact the National Personnel Records Center (NPRC) here.

Compensation and Pension: Your C&P exam
Even if you submit all of your medical records, you may still be asked to go to a C&P exam. This is not a typical doctor’s exam. You won’t be diagnosed or treated, and in some cases, the doctor may just review your records—including any statements in your file—and ask you a few questions. While this may seem unusual for an exam, the doctor is actually filling in a Disability Benefits Questionnaire (DBQ), which the rater will use to determine if your claim can be granted, and at what percentage.

So, in the exam, be honest and specific with your answers. For example, if the doctor asks about an injury, instead of saying “I hurt my back in the service,” you should say “I was getting something off of a shelf in the warehouse and fell off a ladder. There is an accident report. My back has given me problems ever since.” This allows the doctor to connect an incident in service to the current disability, and the DBQ the doctor submits will contain an opinion that your disability is either more- or less-likely than not connected to your service. That’s the third leg of the stool.

What if I need help?
If all of this sounds like Greek to you, then you should either follow our helpful tutorials on YouTube that walk you through the VA compensation claim application process, or enlist the help (FREE) of a Veterans Service Organization (VSO) to assist you.

Then what?
Once you or your VSO has submitted your VA compensation claim, you can check on its current status in eBenefits (hover over “Manage,” then click on “View or update your Compensation and Pension (C&P) claim”). On the status page, you can view more detailed information by clicking on the claim date.

It’s important to note that, once you have submitted your fully-developed claim online, or by mail/fax, you are telling VA that you have no further evidence or information to submit. Submitting un-requested evidence or information after it has been submitted will cause a delay in processing.

Did you know?
By providing a more complete picture of your situation to the rating team when you file your VA compensation claim application, you not only make it easier for the raters to find your information and process your claim, but you also increase your chances of having your claim granted. Although it will take a little more effort on your part, it can pay off with faster VA processing, and will increase your chances of a successful claim the first time.

Remember, the rating team—most of whom are Veterans just like you—is on your side, but you can help them by including everything they need to approve your claim.

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision!

Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims!

Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency

Posted on by BNG

VA to Redesign Benefits Program for Service Members Leaving the Military Service

VA plans to redesign the Benefits Delivery at Discharge program to enable service members to receive disability benefit decisions the day after their discharge. The redesigned program will go into effect October 1.

VA is dedicated to ensuring that Veterans get the benefits they have earned and deserve as quickly and accurately as possible. Changes to the Benefits Delivery at Discharge program will increase VA’s ability to conduct exams, review medical evidence, and process ratings prior to a service member’s release from active duty. In most cases, VA benefits decisions will be provided the day after discharge.

Service member’s using the program can submit their claim from 90 to 180 days prior to discharge from active duty. Previously, the submission time was 60 to 180 days before discharge. This extra time is needed to ensure medical exams can be conducted and evaluated, and claims rated prior to separation. To participate, the service member must be available to attend the VA examination(s) for 45 days from the date of claim submission.

In order to focus resources on those who participate in the redesigned program, the Quick Start program will be eliminated. Quick Start allowed service members who did not meet the Benefits Delivery at Discharge window, to submit their claim and evidence up until one day before discharge from active duty.

While service members can still submit their claim with 89 days or less prior to discharge, the claims will not be processed until after their separation. These claims will be processed as either a fully developed claim or traditional claim as appropriate.

More information on the Benefits Delivery at Discharge program is available on the website, or at military Transition Assistance Program (TAP) offices.

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision!

Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims!

Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency