What Disabled Veterans Must Know About Finality and Revision of Decisions of VA Disability Claims

Finality and Revision of Decisions

Where a claimant does not file a Notice of Disagreement, the benefit decision becomes final.  38 U.S.C. § 7105(c).  When a prior adjudication is final, a claimant may only seek a revision of that decision on the basis of clear and unmistakable error.  38 U.S.C. § 5109A; 38 C.F.R. § 3.105(a) (2009); see also Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002).  In order to properly seek revision of a prior final decision, the appellant must allege either (1) that the correct facts in the record were not before the adjudicator or (2) that the statutory or regulatory provisions in existence at the time were incorrectly applied.  See Damrel v. Brown, 6 Vet. App. 242, 245 (1994); see 38 U.S.C. § 7111 (authorizing revision of Board decisions); Cook, 318 F.3d at 1342 n.2 (noting that, before the enactment of section 7111, final Board decisions were not subject to motions for revision based on CUE).

The only exceptions to the rule of finality are the statutory provisions concerning CUE and the section 3.156(c) regulation described above.  See 38 U.S.C. § 5109A (revision of decisions by the Secretary, including rating decisions, on the grounds of CUE); 38 U.S.C. § 7111 (revision of Board decisions on the grounds of CUE).  Both provisions state that a revision of a prior decision on the basis of CUE has the same effect as if the corrected decision had been made on the date of the prior decision.  The Court has defined CUE as follows:

Either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied …. [CUE is] the sort of error which, had it not been made, would have manifestly changed the outcome … [an error that is] undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made.

Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc); see also Bustos v. West, 179 F.3d 1378, 1380 (Fed. Cir. 1999) (expressly adopting “manifestly changed the outcome” language in Russell).  In order to constitute CUE, the alleged error must be “based upon the evidence of record at the time of the original decision.”  Cook v. Principi, 318 F.3d 1334, 1344 (Fed. Cir. 2002) (en banc).  A claimant alleging CUE must do so “with some degree of specificity.”  Pierce v. Principi, 240 F.3d 1348, 1355 (Fed. Cir. 2001).

A challenge to a regional office decision assigning an effective date with which a claimant disagrees may be made through a direct appeal of that decision, beginning with the timely filing of a Notice of Disagreement.  See 38 U.S.C. § 7105(a).  Where a claimant does not file a Notice of Disagreement, the regional office’s decision becomes final.  38 U.S.C. § 7105(c).  Once a regional office decision is final, a claimant may attempt to overcome the finality of that decision in one of two ways:  by a request for revision of the decision based on clear and unmistakable error or by a request to reopen based upon new and material evidence.  Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc); see 38 U.S.C. § 5109A(a) (“A decision by the Secretary … is subject to revision on the grounds of clear and unmistakable error.  If evidence establishes the error, the prior decision shall be reversed or revised.”); 38 U.S.C. § 5108 (“If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of that claim.”).

Only a request for revision based on CUE or a newly discovered service record can result in the assignment of an earlier effective date for the award of disability benefits because the effective date for an award based on a claim to reopen can be no earlier than the date on which that claim was received.  38 U.S.C. § 5110(a); see Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005) (“[A]bsent a showing of [clear and unmistakable error, the appellant] cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date.”).  Further, the Court has made it clear that VA cannot adjudicate, a freestanding claim for an earlier effective date because to do so would be to compromise the rule of finality.  Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006).

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

What Disabled Veteran Must Know About Rating Reductions

There are circumstances where the VA can reduce your disability benefits. When the VA proposes to reduce a Veteran’s disability compensation, it is of the upmost importance that the Veteran act quickly by seeking the services of either an aggressive Veterans Service Organization or an Attorney accredited by the VA.   The law is very clear that to assist a Veteran in the preparation, presentation, and prosecution of a claim for VA benefits, the individual must be accredited by the VA as an agent, attorney, or representative of a Veterans Service Organization, VSO, 38 U.S.C. §§ 5901-5902, 5904; 38 C.F.R. § 14.629.   There is a one time only exception for a non-accredited individual to assist a Veteran in processing a claim under 38 C.F.R. § 14.630.

To verify the VA accreditation of an Attorney, Claims Agent, or VSO Representative, go to website:  http://www.va.gov/ogc/apps/accreditation/

Some of the most common reasons for the reduction of you VA disabiltiy Compensation are:

  I.   Failure to Report for the “Pre-Reduction” Examination.

 II.  Unprotected Benefit Rating and Your Condition Improves

An Unprotected Benefit Rating is when your disability rating is above the minimum for the disability but below the 100% rating and you have been receiving the rating for less than five (5) years.

When reducing a total disability rating based on the severity of an appellant’s condition, the burden falls on VA to show “material improvement” in the veteran’s condition from the time of the previous rating examination that assigned the appellant’s 100% disability rating.  Ternus v. Brown, 6 Vet. App. 370, 376 (1994); Hohol v. Derwinski, 2 Vet. App. 169, 172 (1992); see also Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992); 38 C.F.R. § 3 .343(a).  The reduction must be based on “[e]xamination reports showing material improvement[, which] must be evaluated in conjunction with all the facts of record, and consideration must be given particularly to whether the veteran attained improvement under the ordinary conditions of life.”  38 C.F.R. § 3.343(a).

Pursuant to 38 C.F.R. section 3.105(e), when the RO determines that a rating reduction is warranted, it is required to issue a proposed rating reduction, setting forth the reasons for the proposed reduction, and to allow the veteran a period of at least 60 days to submit additional evidence to show that the rating should not be reduced.  Furthermore, when, after such period, the RO issues a decision reducing the rating, that reduction does not become effective until the “[l]ast day of [the] month following 60 days after notice to [the] payee” of the reduction decision.  38 C.F.R. § 3.400(r); see 38 C.F.R. § 3.105(e).  The effect of sections 3.105(e) and 3.400(r) combined is that a rating reduction cannot be made effective for a minimum of 120 days after it is proposed in writing to the veteran.  Brown (Kevin) v. Brown, 5 Vet. App. 413, 418 (1993).

An important right that can easily be overlooked in the notice of a proposed reduction (because VA buries it in the notice), is the right for a “pre-determination hearing” under 38 C.F.R. section 3.105(i).  A claimant has a right to this hearing if he or she requests it within 30 days of the notice of proposed reduction.  Requesting a pre-determination is important because VA cannot implement the proposed reduction until after the hearing and it reaches a decision based on the evidence and the hearing.  In practice, this means that a claimant can delay a reduction and continue to receive full payments for some months in order to obtain evidence or assistance.

There is a risk, however, in continuing to receive full benefit payments under these circumstances.  Should the VA still conclude that a reduction is appropriate, it will create a debt against the veterans for the “overpayments” during the time waiting for the pre-determination hearing and decision.  This means that a veteran can end up with lower benefits payments andowe the VA a large sum.  Veteran’s requesting a pre-determination hearing are, therefore, strongly urged to be careful with their finances until the reduction issue is finally decided

In every rating reduction case, the Board must “ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations.”  Brown v. Brown, 5 Vet. App. 413, 421 (1993); see also Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991) (requirements “operate to protect claimants against adverse decisions based on a single, incomplete[,] or inaccurate report and to enable VA to make a more precise evaluation of the level of disability and of any changes in the condition”); 38 C.F.R. §§ 4.1, 4.2, 4.13.  Where the Court concludes that the Board has reduced a veteran’s rating without observing applicable laws and regulation, such a rating is void ab initio and the Court will set it aside as “not in accordance with the law.”  38 U.S.C. § 7261(a)(3)(A); Kitchens v. Brown, 7 Vet. App. 320, 325 (1995); see Brown, 5 Vet. App. at 422; Horowitz v. Brown, 5 Vet. App. 217 (1993).

When determining whether VA was justified in reducing a veteran’s disability rating that has continued at the same level for five or more years, “the Board is required to establish, by a preponderance of the evidence and in compliance with 38 C.F.R. § 3.344, that a rating reduction is warranted.”  Sorakubo v. Principi, 16 Vet. App. 120, 123–24 (2002) (citing Brown v. Brown, 5 Vet. App. 413, 421 (1993)); see also Kitchens v. Brown, 7 Vet. App. 320, 325 (1995) (holding that when the regional office reduces a veteran’s rating without observing the applicable VA regulations, the reduction is void).  The regulatory requirements for reducing a disability rating that has continued at the same level for five years or more are more stringent than the general requirements for increasing or decreasing a disability rating that has been in effect for a shorter amount of time.  See 38 C.F.R. §§ 3.344(a)-(c); Collier v. Derwinski, 2 Vet. App. 247, 249–50 (1992).  “Such disabilities are considered ‘stabilized,’ and the regulation thus requires a high degree of accuracy in decisions reducing those ratings.”  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991) (citing 38 C.F.R. § 3.344(c)).  In addition, certain regulations “are applicable to all rating reductions regardless of whether the rating has been in effect for five years or more as required by section 3.344(c),” including 38 C.F.R. sections 4.1, 4.2, 4.10, and 4.13.  Brown, 5 Vet. App. at 420.

Pursuant to sections 4.1, 4.2, and 4.13, VA is required in any rating-reduction case “to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations.”  Brown, 5 Vet. App. at 421; see also Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991) (such requirements “operate to protect claimants against adverse decisions based on a single, incomplete[,] or inaccurate report and to enable VA to make a more precise evaluation of the level of disability and of any changes in the condition”).  In addition, “in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work.”  Brown, 5 Vet. App. at 421; see also 38 C.F.R. §§ 4.2, 4.10.

The Court has specifically required VA to follow its own regulations when it attempts to reduce a veteran’s rating.  See Fugere v. Derwinski, 1 Vet. App. 103 (1990) (holding that VA was required to give notice and opportunity to be heard prior to deleting provision of VA Adjudication Procedure Manual M21–1MR that had provided regulatory-like procedural protections prior to reducing veteran’s rating, and noting: “Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures.” (citations omitted)), aff’d, 972 F.2d 331 (Fed. Cir. 1992).  The Court determines de novo whether VA has followed and applied its own regulations in reducing or terminating VA benefits.  See Wilson (Merritte) (making determination de novo without so stating) and Fugere (same), both supra; Brown (Kevin) v. Brown, 5 Vet. App. 413, 416–21 (1993) (same); cf. Buzinski, supra (reviewing de novo compliance with VA regulation regarding mortgage foreclosure).

If VA affords to a veteran the applicable procedural protections and nonetheless determines that a reduction in rating is warranted, the determination as to the degree of disability under the applicable diagnostic code is a finding of fact subject to the “clearly erroneous” standard of review.  See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Faust v. West, 13 Vet. App. 342, 348 (2000).

In reducing a rating of 100 percent service-connected disability based on individual unemployability, the provisions of section 3.105(e) apply but caution must be exercised in such a determination that actual employability is established by clear and convincing evidence.  If a veteran with a total disability rating for compensation purposes based on individual unemployability begins to engage in a substantially gainful occupation during the period beginning after January 1, 1985, the veteran’s rating may not be reduced solely on the basis of having secured and followed such substantially gainful occupation unless the veteran maintains the occupation for a period of 12 consecutive months.  For purposes of this subparagraph, temporary interruptions in employment which are of short duration shall not be considered breaks in otherwise continuous employment.  38 C.F.R. §§ 3.343(a), (c); Faust v. West, 13 Vet. App. 342, 352 (2000).

There is a clear distinction between a claim challenging a reduction in a schedular rating and one involving a claim for a restoration or an increase in a schedular rating.  See Peyton v. Derwinski, 1 Vet. App. 282 (1991); Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992).  “The initial procedural burden regarding proposed rating reductions [pursuant to section 3.343(a) ] … falls squarely on the VA to show material improvement from the previous rating examination that had continued a veteran’s 100% disability rating.”  Ternus v. Brown, 6 Vet. App. 370, 376 (1994).  “[T]he circumstances under which rating reductions can occur are specifically limited and carefully circumscribed by regulations promulgated by the Secretary.”  Dofflemyer, 2 Vet. App.at 280.

That the Court has jurisdiction to review the BVA’s failure to decide the improper reduction claim is clear.  See 38 U.S.C. § 511(a) (“The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary to veterans …”); In the Matter of Fee Agreement of Smith, 10 Vet. App. 311 (1997) (BVA failure to adjudicate veteran’s claims properly before it was a final adverse decision with respect to that claim); Suttmann v. Brown, 5 Vet. App. 127, 133 (1993) (Board erred in failing to adjudicate a claim reasonably raised to it); see also Carpenter v. Gober, 11 Vet. App. 140 (1998) (an implied claim which is not reviewed by the BVA is considered a denial).  Thus, while the Court may not review nonfinal BVA decisions to remand, it clearly may—indeed, must—review claims explicitly or implicitly raised by the appellant and not adjudicated by the BVA.

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

What Veterans Should Know About Extra-Schedular Rating

VA regulations provide for referring a case for extraschedular consideration when a claimant demonstrates 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 regular schedular standards.”  38 C.F.R. § 3.321(b)(1).  Consideration of referral for an extraschedular rating must begin with “a comparison between the level of severity and symptomatology of the claimant’s service-connected disability [and] the established criteria found in the rating schedule for that disability.”  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  VA must evaluate whether “the rating schedule is inadequate to evaluate a claimant’s disability picture.”  Id. at 116.  The disability picture includes all of a claimant’s service-connected disabilities.  See 38 C.F.R. § 3.321(b)(1) (goal of extraschedular consideration is to arrive at “an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities”).

The award of an extraschedular disability rating is the result of a three-step inquiry the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Services.  Thun, 22 Vet. App. at 115.  The first step is to compare the level of severity and symptomatology of the appellant’s disability with the established criteria in the rating schedule.  Id.  If these criteria “reasonably describe the claimant’s disability level and symptomatology” then the regular schedular rating system is adequate and extraschedular referral is not warranted.  Id.

If the rating schedule does not contemplate the claimant’s level of disability and symptomatology and is found inadequate, then “the RO or Board must determine whether the claimant’s exceptional disability picture exhibits other related factors,” such as “marked interference with employment” or “frequent periods of hospitalization.”  38 C.F.R. § 3.321(b)(1).  When an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant’s disability picture, then the case must be referred to the Undersecretary for Benefits or the director of the Compensation and Pension Service to complete the third step which is to determine whether to assign an extraschedular disability rating in order to “accord justice.”  Thun, 22 Vet. App. at 116; 38 C.F.R. § 3.321(b)(1).

The Board must consider referral for an extraschedular rating when either a claimant or the evidence of record suggests that a schedular rating may be inadequate.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  “The governing norm in these exceptional cases is:  A finding that the 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.”  38 C.F.R. § 3.321(b).  The effects of medications for service-connected conditions can warrant an extraschedular rating referral. Fisher v. Principi, 4 Vet. App. 57 (1993).  Where the Board did not address whether referral for extraschedular consideration was warranted, the Court’s review is “limited to whether the evidence of record sufficiently raises the possibility that this regulation is applicable, such that the Board was required to discuss whether referral was warranted [under section 3.321(b)(1)].”  Barringer v. Peake, 22 Vet. App. 242, 245 (2009).

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

What Disabled Veterans Must Know About Schedular Rating 100%-TDIU or Indiviual Unemployability

Schedular Rating 100%-TDIU or Indiviual Unemployability

In some cases, however, a veteran with less than a 100% scheduler rating is so affected by service-connected conditions that he or she cannot work at gainful employment. The law allows for another type of claim in such a case.

VA benefits are available to compensate a veteran at the 100% level if he or she is not able to work because of service-connected conditions even without a 100% schedular rating. This benefit is called “total disability on the basis of individual unemployability”, (“TDIU”), or sometimes “individual unemployability, ” (“IU”).

The key issue in a TDIU claim is the inability of the veteran to engage in “substantially gainful employment” because of his or her service-connected conditions. “Substantially gainful employment” means to hold a job that pays at least an amount equal to the annual poverty level set by the federal government. In order to qualify for TDIU benefits, a claimant must meet the following requirements:

  1. If the claimant has only one service-connected condition, that condition must be schedular rated at least 60% or more;
  2. If the claimant has two or more service-connected conditions, at least one of those conditions must be rated at 40% or more, and the veteran’s combined disability rating must be 70% or more; and
  3. In either case, the veteran must be unemployable because of his or her service-connected conditions.

To establish “unemployability” or “inability to substantially maintain gainful employment”, the Veteran must provide:

  1. evidence of unemployment due to service-connected conditions, employment history records for example, and
  2. medical evidence that the veteran’s service-connected condition renders him or her totally disabled and unemployable, generally a doctor’s opinion letter.

Having a paying job does not automatically disqualify a claimant from a TDIU award.  If the wages are considered “marginal” (low paying) or “sheltered” (protected from usual requirements) employment are exceptions to the TDIU qualification requirements.  Examples of employment that are allowed under TIDU:

  • A job that pays substantially less than the prevailing poverty level,
  • A job that is protected from requirements that someone else in that position would be expected to satisfy, or
  • A job working for a friend or relative, may not be “substantially gainful employment.”

Although it is always better to submit a specific claim for TDIU.  The VA has a duty to look for potential TDIU claims based on the evidence in the claimant’s VA claims file, known as a “C-file”. The VA is required to review the claims for TIDU, even if not specifically requested by the Veteran, because entitlement to TDIU is part of every claim for disability compensation. Upon reviewing the claim, the VA determines if TDIU is an appropriate award for the claim.  Evidence of unemployability can be submitted after an initial decision denying TDIU, if while a claim for schedular benefits is still being processed.

As with most VA benefits, TDIU is not a permanent benefit. The VA can require a claimant undergo periodic medical examinations to confirm that the claimant remains unable to work due to a service-connected condition. And, as with all VA examinations, a failure to report for a scheduled examination can result in suspension or termination of a TDIU benefit.

In addition, since a TDIU award is also based on “unemployability,” the VA can  periodically request employment information from a claimant receiving TDIU benefits. The VA will also cross check employment earnings with the IRS.

The TDIU rating could be terminated and the claimant could be liable to repay VA for the TDIU benefits paid since that employment began, if:

  1. the VA becomes aware that a claimant is working at a job that is not marginal or sheltered,
  2. A claimant must also be careful in performing volunteer work because the nature and time spent at unpaid work shows that a claimant could be employed and  is no longer unemployable.

If a Veteran is determined to be employale, the TDIU award can and will probably be revoked. When a TDIU rating is revoked, a claimant’s benefits go back to the amount of compensation payable under the scheduler rating and the VA can make the Veteran repay the TDIU award.

Additional Information:

Although it is best to make an explicit claim for TDIU if a claimant believes he or she is eligible, it is no longer required.  Potential entitlement to TDIU is part of every claim for disability compensation.  See Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009) (TDIU “is part and parcel of the determination of the initial rating for [a] disability”).  It is now well established that the Board must consider “whether a TDIU award is warranted whenever a pro se claimant seeks a higher disability rating and submits cogent evidence of unemployability, regardless of whether he states specifically that he is seeking TDIU benefits.”  Comer v. Peake, 552 F.3d 1362, 1366 (Fed. Cir. 2009) (citing Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001)); see also Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (same).  “[A] request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as a part of the initial adjudication of a claim or . . . as a part of a claim for increased compensation.”  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); see also Floyd v. Brown, 9 Vet. App. 88, 96 (1996) (the question of an extraschedular rating is a component of the appellant’s claim for an increased rating).  A request for a higher disability rating and evidence indicating that the claimant’s ability to work was “significantly impaired” by his or her service connected conditions reasonably raises the issue of entitlement to TDIU as an alternative basis for increased compensation.  Id.

VA regulations provide two methods by which TDIU may be granted.  Under the first, TDIU may be assigned to a claimant who is “unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities” provided that he has received a disability rating of 60% or greater, or, if he is service-connected for two or more disabilities, at least one of those disabilities has been assigned a disability rating greater than 40%, and the combined disability rating for all disorders is at least 70%.  38 C.F.R. § 4.16(a).  If the claimant does not meet these schedular TDIU requirements, a TDIU rating may still be obtained by referral to the director of Compensation and Pension Service for extraschedular consideration when the claimant is unemployable by reason of service-connected disabilities.  38 C.F.R. § 4.16(b).

38 C.F.R. section 3.321(b)(1) provides an alternative method of referring a case for extraschedular consideration when a claimant demonstrates 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 regular schedular standards.”  Extraschedular consideration under section 3.321(b) is not the same as TDIU under section 4.16(b) because sections 4.16(b) and 3.321(b)(1) are not interchangeable.  See Kellar v. Brown, 6 Vet. App. 157, 162 (1994) (“the effect of a service-connected disability appears to be measured differently” by the two regulations).  Section 4.16(b) requires evidence of unemployability, while § 3.321(b)(1) requires only “marked interference with employment,” which is a somewhat less severe standard.  See Thun v. Peake, 22 Vet. App. 111, 117 (2008); see also Stanton v. Brown, 5 Vet. App. 563, 564-70 (issue of extraschedular rating is separate from issue of TDIU rating).  In other words, a claimant need not demonstrate total unemployability to obtain a section 3.321(b) extraschedular disability rating.

The term “substantially gainful occupation” is not defined by VA regulation; however, the Court has held that the term refers to, at a minimum, the ability to earn “a living wage.”  Bowling v. Principi, 15 Vet. App. 1, 7 (2001); Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991).  The Court has also held that a person is engaged in a “substantially gainful occupation” when that occupation “provides annual income that exceeds the poverty threshold for one person.”  Faust v. West, 13 Vet. App. 342, 355-56 (2000).  The M21-1MR states that “voluntary withdrawal from the labor market” is an “extraneous factor” whose “effects” should be “[i]dentif[ied] and isolate[d]” in determining whether the severity of the service-connected conditions preclude a veteran from “obtaining or retaining substantially gainful employment.”  M21-1MR, pt. IV, subpt. ii, ch. 2, sec. F.27.e.  Consequently, voluntary withdrawal from the labor market should not be an automatic bar to TDIU.

In adjudicating an assertion of entitlement to TDIU, the Board must also consider whether the existing VA medical examination reports adequately “address the extent of functional and industrial impairment from the veteran’s service-connected disabilities.”  Gary v. Brown, 7 Vet. App. 229, 232 (1994).  Thus, if the Board determines that the existing examination reports are insufficient to assess the matter of TDIU, it should request additional medical evidence before adjudicating the matter.

In resolving a TDIU case, the question is whether the claimant is capable of securing or maintaining a substantially gainful occupation.  Although a claimant may be physically able to perform sedentary employment, he or she may not be educationally and vocationally qualified to perform such employment.  Although the duty to assist does not require VA to provide a vocational assessment to a claimant seeking a total disability rating based on individual unemployability, a claimant’s education and work experience are relevant to the issue of entitlement to such a rating.  Smith v. Shinseki, 647 F.3d 1380, 1386 (Fed. Cir. 2011).

Specifically, it is within VA’s discretion to determine whether a vocational assessment was required based on “the facts of a particular case” and an assessment would be required “if, for example, the veteran were found medically qualified for a particular type of job, but there was an unusually difficult question as to whether the veteran had the educational or vocational skills for that position.”  Id.  Accordingly, Smith does not require VA to provide a vocational assessment in every instance where a claimant is seeking a total disability rating based on individual unemployability, but it does require VA to at least consider whether a vocational assessment is required and to support its determination that one is not required with an adequate statement of reasons or bases.  Id.see also 38 U.S.C. § 7104(d)(1) (requiring the Board to provide a written statement of the reasons or bases for its “findings and conclusions[] on all material issues of fact and law presented on the record”).

If a claimant does not meet the schedular rating for unemployability provided in 38 C.F.R. § 4.16(a), he may still be granted TDIU on an extraschedular basis.  38 C.F.R. § 4.16(b).  The central inquiry “is whether that veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.”  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  In making its decision, VA may consider the veteran’s education, special training, and previous work experience, but may not take into consideration any impairment caused by non-service-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 1.19.  The Board’s determination as to whether a claimant is unable to secure and hold substantially gainful employment is a finding of fact that the Court reviews under the “clearly erroneous” standard.  Bowling v. Principi, 15 Vet. App. 1, 6 (2001).

Although the Secretary and the Board can separate parts of a claim and develop and adjudicate them separately, see Fagre v. Peake, 22 Vet. App. 188, 191 n.4 (2008) (noting the Secretary is free to “issu[e] separate Board decisions with regard to each, some, or all disabilities claimed by a veteran”), TDIU remains a component of an increased rating claim for any period not adjudicated separately, and the Board has jurisdiction over the issue as long as it has jurisdiction over an increased rating claim.  See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  Evidence of unemployability subsequent to a decision denying TDIU and while a claim for increased benefits is still being processed may lead to an award of TDIU for the time period under adjudication.  If TDIU is not warranted pursuant to 38 C.F.R. section 4.16(a), the matter of a TDIU rating may still be referred to the director of Compensation and Pension Service for extraschedular consideration when it is found that the claimant is unemployable by reason of service-connected disabilities.  38 C.F.R. § 4.16(b).

 “Evidence of unemployability,” does not equate to “100% unemployable.”  Roberson v. Principi, 251 F.3d at 1378, 1384-85 (Fed. Cir. 2001).  Instead, an appellant is not required “to show 100[%] unemployability in order to prove that he cannot ‘follow substantially gainful occupation.'”  Id.  Section 4.16(a) also indicates that “[m]arginal employment shall not be considered substantially gainful employment.”  Marginal employment includes employment in a “protected environment” including a “sheltered workshop.”  38 C.F.R. § 4.16(a).

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

How Same Sex Marriage is Handled During VA Benefits Claims

On June 26, 2015, the Supreme Court held in Obergefell v. Hodges that the Fourteenth Amendment of the U. S. Constitution requires a state to license a marriage between two people of the same sex and to recognize a marriage two people of the same sex when their marriage was lawfully licensed and performed out-of-state.

Accordingly, the Department of Veterans Affairs (VA) may now recognize all same-sex marriages without regard to a Veterans’s state of residence. VA will generally accept a claimant’s statement that he or she is married, but may investigate further if an assertion appears unreliable. The same procedure applies regardless whether the claimant is in an opposite-sex marriage or a same sex marriage.

VA is dedicated to serving all eligible Service members, Veterans and their families and providing them the benefits they have earned. All Veterans is same-sex marriages who believe they are entitled to benefits, (including those whose claims were previously denied on a ground related to their marriage) are encouraged to promptly apply for benefits.

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

What Veterans Should Know About Disability Benefits Questionaires (DBQs)

Disability Benefits Questionnaires (DBQs)

Disability Benefits Questionnaires (DBQs) are downloadable forms for Veterans to use in the disability evaluation process. DBQs can help speed the processing of compensation and pension claims.

DBQs allow Veterans and Service members to have more control over their disability claims process by giving them the option of completing an examination with their own healthcare provider instead of at a Department of Veterans Affairs (VA) facility.

DBQs enable private healthcare providers to capture important information needed by VA to accurately evaluate and promptly decide Veterans’ claims for benefits.

More than 70 DBQs are available that use check boxes and standardized language to streamline the process. DBQs average about five pages in length. Veterans are responsible for any fees their private provider may charge for completing a DBQ.

The DBQ process involves four steps:

  1. Access the form online and download it;
  2. Have your healthcare provider complete the form;
  3. Save a copy for your records; and
  4. Submit the form to VA.

The DBQ forms are available on our “List by DBQ Form Name” page

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

What Disabled Veterans Should Know About VA Claim Backlogs and Delays

It is no secret that VA continues to be plagued by a large backlog of claims. Despite repeated promises and commitments for improvement, VA’s backlog has actually grown significantly over the last few years. For example, by VA’s own accounting, the Secretary’s stated goal of 125 days to reach an initial decision has gone from being met in approximately 2 out of 3 claims to only 1 in 3 claims. Worse yet, the average time for a decision by the Board of Veterans’ Appeals is approaching 3 years and the time for a decision to return from an appeal to the Court can be 7 or 8 years.

There is no such thing as a “financial hardship” or “hardship” claim or any other shortcut around the backlog for initial or reopened claims. Despite widespread misinformation, there is little, if anything, that a veteran can do to “speed up” his or her initial or reopened claim at the regional office level. This does not mean that some raters will not take such circumstances into consideration if they know the claimant’s situation. But because severe financial circumstances, a terminal illness, or other hardships do not qualify a claimant for any special treatment, a claimant cannot demand such treatment. The only exception is for the claims of veterans that are or on the verge of becoming homeless. In such cases, the Secretary has directed expedited treatment of claims. Even this action is not a legal requirement, only a VA internal priority.

The Board does allow “advancement on the docket” of appeals from claimants that are “seriously ill” or “under severe financial hardship.” The Board will also consider motions from veterans over 75 years of age. Whatever the reason, veterans seeking to advance on the Board’s docket need to be very specific about why they should be able to do so and submit supporting evidence (such as a doctor’s statement or foreclosure notice) because many veterans are ill or are in financial difficulty and everyone cannot be given priority by the Board.

Other than filing a motion for advancement with the Board, attempting to “put pressure” on a VA office, the Board, or the Court is not only a waste of time, it can result in additional delay because the C-file may be removed from the line waiting for decision so that VA can respond to such attempts. This includes Congressional “inquiries,” which are often just exchanges of form letters.

There is slightly better news for claims remanded from the Board and the Court. VA is required by law to provide “expeditious treatment” of remanded claims. The Court has made clear that remands must receive higher priority development than other claims. How long VA can take to resolve a remanded claim under the “expeditious treatment” rule is not clear, but claimants can at least point to this requirement in dealing with delays in remanded claims and, if necessary, seek a Court order for VA to make a decision.

In all cases, the best thing a claimant can do is to quickly respond to each VA request with clear and to the point responses do not give VA any reason to delay making a determination.

The Secretary has a statutory obligation to expeditiously process remands from this Court.  Thus, not only must the Secretary ensure that he completes the Court-ordered task, he must do so in an expeditious manner.  38 U.S.C. §§ 5109B, 7112.  Excessive delays in the processing of remands ordered by the Court cannot help but sap public confidence and impugn the Court’s dignity, as from the outside it invariably appears that VA is ignoring the valid mandates of an institution that has express authority over it in matters related to veterans benefits.  See Erspamer v. Derwinski, 1 Vet. App. 3 (1990) (discussing delay in administrative action and public confidence).

Furthermore, the Secretary’s obligation to process Court remands expeditiously is integral to this Court’s jurisdictional authority to remedy unreasonable delays in the processing of veterans’ claims.  See Vietnam Veterans of America v. Shinseki, 599 F.3d 654, 659–660 (D.C. Cir. 2010) (suggesting that the U.S. Court of Appeals for Veterans Claims may have exclusive jurisdiction over claims concerning unreasonable delays in processing); see also Ribaudo v. Nicholson, 20 Vet. App. 552, 557 (2007) (“With respect to matters relating to veterans-benefits claims, however, Congress adopted a very different approach to judicial review.  A decision of the Board can only be appealed to a single venue—this Court.” (citing 38 U.S.C. § 7252(a))).  Therefore, failure by the Secretary to comply with his obligation to process Court remands expeditiously, is the same as noncompliance with the remand order itself, even if the Secretary eventually complies with the substance of the order.  Harvey v. Shinseki, 24 Vet. App. 284, 288 (2011).

 “While there is no absolute definition of what is reasonable time, we know that it may encompass ‘months, occasionally a year or two, but not several years or a decade.'” Community Nutrition Institute v. Young, 773 F.2d 1356, 1361 (D.C. Cir. 1985) (quoting MCI Communications Corp. v. FCC, 627 F.2d 322, 340 (D.C. Cir. 1980).  Erspamer v. Derwinski, 1 Vet. App. 3, 10 (1990).  When delay is alleged as the basis for a petition for writ of mandamus, a clear and indisputable right to the writ does not exist unless the petitioner demonstrates that the alleged delay is so extraordinary, given the demand on and resources of the Secretary, that it is equivalent to an arbitrary refusal to act.  Compare Costanza v. West, 12 Vet. App. 133, 134 (1999) (per curiam order) (addressing an 11–month delay and finding the petitioner did not demonstrate that he lacked alternative means of relief when he did not undertake to resolve delay prior to filing the petition), with Erspamer v. Derwinski, 1 Vet. App. 3, 11 (1990) (addressing a three-year delay and finding petitioner had no adequate alternative means for relief when she contacted the regional office more than 30 times before filing her petition with the Court).

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

What Veterans Must Know About Duty Requirements In Processing VA Disability Claims

Duty to Assist

In requiring the VA benefits system to be a “non-adversarial” process, Congress has imposed on VA a “duty to assist” claimants. The most significant VA duties are discussed below. In general, VA is required to notify a claimant of what information is required to obtain an award of the benefits requested. VA also has a duty to obtain a veteran’s service records, service medical records, VA treatment records, and any other government records (such as Social Security Administration records) that reasonably may contain information supporting the claim. These duties significantly ease the burden on claimants in assembling the evidence needed to support a claim.

The duty to assist, however, does not mean a claimant has no responsibility for his or her claim. Even if a claim satisfies the minimum threshold for the duty to assist to apply, the law requires VA only to “assist” a veteran with the development of the evidence in support of his or her claim: there are limits on what VA has to do to help a veteran. A claimant seeking a benefit, still has a responsibility to be an active participant in the claims process if he or she wants to be successful.

VA has other duties that can be helpful to claimants in certain circumstances. If an award is made, VA has a duty to look for ways to maximize the benefit paid to a claimant based on the evidence. This means that VA has to consider all the possible diagnostic codes that could apply and base an award on the code or codes that result in the highest payment. VA also has to identify and grant awards for “inferred” claims, which are claims that the evidence supports but the claimant did not specifically request. Both of these duties make it easier for veterans to receive the greatest benefit possible without having to be an expert in VA law.

A claimant also needs to keep in mind that, the duty to assist aside, VA also has responsibilities to follow the law and to prevent improper awards. As a practical matter, this means that the system eventually becomes “adversarial” when VA decides that an award cannot be granted. Further, the huge backlog of claims has strained VA’s resources and continues to result in a high rate of errors. For these reasons, claimants should remain actively involved in their claims and maintain a healthy skepticism of VA decisions throughout the process to avoid a wrongful denial.

Duty to Provide Notice

A claimant has an initial responsibility to file a substantially complete application. If he or she does not do so, VA does not have to process the application. VA does, however, have a “duty to notify” the claimant of the information needed to make the application complete enough to process.

Although exactly what makes an application substantially complete is not defined, VA usually requires at least the following minimum information for a substantially complete application: (1) claimant’s name and, if not the veteran, the relationship to the veteran upon whom the application is based; (2) the medical condition(s) claimed; and (3) the claimants signature. Pension claims also require a statement of income before VA will begin processing the claim. Whatever the reason, if VA determines that an application is not substantially complete, VA has to notify the claimant of the information that it believes is needed to complete the application.

Once a substantially complete application has been submitted, VA has a second “duty to notify.” This time VA has to tell the claimant (1) what information is needed to substantiate the claim, (2) what part of that information VA will try to obtain; and (3) what information that the claimant is responsible for providing to VA. Each time a new issue or claim arises, VA has the same duty to notify the claimant of what information is needed and who (VA or claimant) is responsible for obtaining it.

Section 5103A notification requirements cannot be met through a combination of unrelated decisional and postdecisional communications.  Mayfield v. Nicholson, 444 F.3d 1328, 1335 (Fed. Cir. 2006).  Section 5103 requires VCAA notification to be issued “prior to the initial decision of the claim, not afterwards.”  Id. at 1333. 

The Court must assess the Board’s notification analysis as a whole to adequately determine whether a factual finding regarding 38 U.S.C. § 5103(a) notification had been made by the Board in the first instance.  Prickett, 20 Vet. App. at 375-76; Yarbrough v. Nicholson, 21 Vet. App. 512 (2006).  The Court reviews the Board’s determination that VA satisfied its duty to assist under the “clearly erroneous” standard of review.  Nolen v. Gober, 14 Vet. App. 183, 184 (2000).

Duty to Obtain Records

The VA is required to make “reasonable efforts” to obtain a claimant’s military service records, VA medical records, and other pertinent federal records without being asked to do so. If a claimant requests assistance in obtaining records from private physicians and hospitals, VA is required to try to obtain those records as well. However, VA is not required to continue to request or wait for records if it determines that the records do not exist or further efforts to obtain the records would be futile. In addition, VA will not pay for obtaining private medical records.

As a practical matter, VA usually can obtain records from government agencies and the military without significant problems. There are situations, however, where VA does not properly request documents or the documents have been lost or destroyed by another agency. VA must inform a claimant of its failure to obtain relevant records. A claimant can and should submit his or her copy of relevant documents even if VA is technically responsible for obtaining the information because the lack of relevant information can result in denial of an otherwise valid claim.

“The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit under a law administered by the Secretary.”  38 U.S.C. § 5103A(a)(1).  Gardner v. Shinseki, 22 Vet. App. 415, 421 (2009) (“Accordingly, the Secretary’s duty to assist applies to all claimants, regardless of whether they have established veteran status.”).  VA is statutorily required to “make as many requests as are necessary” to obtain a veteran’s relevant service records in the custody of a Federal department or agency.  38 C.F.R. § 3.159(c)(2); see Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); see also Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992) (“There is a continuing obligation upon the VA to assist the veteran in developing the facts of his claim throughout the entire administrative adjudication.”).

Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, the Secretary is required to inform the claimant of the information and evidence not of record that:

(1)   is necessary to substantiate the claim,

(2)   the Secretary will seek to obtain, if any, and

(3)   the claimant is expected to provide, if any, and to request that the claimant provide any evidence in his possession that pertains to the claim.  

See 38 U.S.C. § 5103(a); Pelegrini v. Principi, 18 Vet. App. 112, 119, 121 (2004); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b). This duty includes making “reasonable efforts to obtain relevant records (including private records) that the claimant adequately identifies to the Secretary and authorizes the Secretary to obtain.”  38 U.S.C. § 5103A(b)(1).  If the Secretary is unable to obtain all of the records sought, the Secretary must provide notice to the claimant that “identif[ies] the records that the Secretary was unable to obtain,” “briefly explain[s] the efforts that the Secretary made to obtain those records,” and “describe[s] any further action to be taken by the Secretary with respect to the claim.” 38 U.S.C. § 5103A(b)(2).  These requirements also apply to private documents. 

But, the “duty to assist in the development and adjudication of a claim is not a one-way street.”  Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996).  VA’s duty to assist includes making “reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit.”  38 U.S.C. §§  5103A(a)(1), (b); cf.  The Board’s determination whether VA fulfilled its duty to assist generally is a finding of fact that the Court reviews under the “clearly erroneous” standard of review.  See Nolen v. Gober, 14 Vet. App. 183, 184 (2000); Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990). 

Duty to Obtain Lost or Missing Records

VA’s duty in cases involving lost records is to seek out alternative sources for obtaining the lost records.  Cromer v. Nicholson, 455 F.3d 1346, 1351 (Fed. Cir. 2006).  Pursuant to 38 U.S.C. section 5103A, the Secretary is required to “make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for benefits.”  38 U.S.C. §§ 5103A(a), (b). Where a claimant’s records are lost or destroyed, VA has a “heightened” duty to assist the claimant that includes advising him that his records were lost, advising him to submit alternative forms of evidence to support his claim, and assisting him in obtaining his alternative evidence.  Washington v. Nicholson, 19 Vet. App. 362, 370 (2005); Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992). 

However, the Court cannot grant an appellant’s claim solely because his records were lost because that remedy “would amount to a judicial amendment of the statutory duty to assist-a measure beyond the power of this court.”  Id. at 1351.  A veteran bears the burden of showing error on this issue.  See Hilkert v. West, 12 Vet. App. 145, 151 (1999) (holding that the appellant bears the burden of demonstrating error); Berger v. Brown, 10 Vet. App. 166, 169 (1997) (holding that an appellant “always bears the burden of persuasion on appeals to this Court”).

When medical records are lost, it warrants a heightened duty by the Secretary and the Board to assist and explain the Board’s findings.  See Vazquez-Flores, supra; see also Cromer v. Nicolson, 455 F.3d 1346, 1351 (Fed. Cir. 2006) (“[I]n cases involving lost records, the Board has a heightened duty to explain its findings.”); Daye v. Nicholson, 20 Vet. App. 512, 515 (2006) (where appellant’s records not available, the duty to assist and fully explain reasons and bases is heightened); Stegall, supra; see also Russo v. Brown, 9 Vet. App. 46, 51 (1996) (holding that the Court’s caselaw establishes a “heightened duty” to assist when the appellant’s medical records have been lost or destroyed); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992) (holding that the Board’s duty to assist a claimant in developing his claim is heightened in cases in which the appellant’s SMRs are lost or destroyed “and includes the obligation to search for alternate medical records”); Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) (holding that VA’s duty to assist is “particularly great in light of the unavailability of the veteran’s exit examination and full Army medical records”).

Duty to Provide Medical Examination 

VA is required to schedule a compensation and pension (C&P) examination for a claimant at the nearest VA medical center unless there is a good reason for not doing so, such as when an expert is required that is not available at the nearest facility or the examination is with a VA medical contractor. VA, however, does not have to provide a medical examination in all cases. The standard for providing a medical examination is usually not difficult to meet. VA, however, can refuse to provide a VA medical examination unless there is some reasonable possibility that an examination will provide information that could be useful in deciding the claim.

In general, to obtain a C&P examination a claimant needs to show a current medical condition, some evidence of potential connection to service, and that available medical evidence is not sufficient to allow a decision on the claim. In other words, the claimant must first provide some reason for VA to believe that a medical examination would be helpful in resolving the claim. A claimant’s own statement that his or her symptoms have continued since service or a previous medical examination report can be enough of a reason.

Should VA schedule a medical examination, a claimant has a duty to report for the examination. In most cases, if the claimant does not show up for an examination, the claim(s) associated with that examination can be denied without further development. There are some reasons for failing to show for a scheduled examination, such as illness or urgent family emergency, that can be excused. Even so, claimants should make every effort to reschedule an examination in advance to avoid problems.

As part of his duty to assist, the Secretary must “make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit” including a medical examination.  38 U.S.C. § 5103A(a)(1).  The Secretary must provide a medical examination or obtain a medical opinion “when such an examination or opinion is necessary to make a decision on the claim.”  38 U.S.C. § 5103A(d)(1).  VA must provide a medical opinion or examination if the information and evidence of record does not contain sufficiently competent medical evidence to decide the claim, but there is:

(1)   competent evidence of a current disability or persistent or recurrent symptoms of a disability;

(2)   evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and

(3)   an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability.

McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 C.F.R. § 3.159(c)(4)(i).  The requirement that the evidence indicate that a condition “may be associated” with service establishes a “low threshold.”  McLendon, 20 Vet. App. at 83. 

When deciding whether an examination is necessary, the Secretary shall consider the evidence of record, “taking into consideration all information and lay or medical evidence (including statements of the claimant).”  38 U.S.C. § 5103A(d)(2).  “The Board’s ultimate conclusion that a medical examination is not necessary pursuant to section 5103A(d)(2) is reviewed under the ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law’ standard of review.”  McLendon, 20 Vet. App. at 81.

Generally, section 5103A notice must be given on “all five elements of a claim for service connection,” which include:

 (1) veteran status;

(2)   existence of disability;

(3)   service connection of disability;

(4)   degree of disability; and

(5)   effective date of disability.  

38 U.S.C. § 5103(a); Dingess v. Nicholson, 19 Vet. App. 473, 487 (2006) (consolidated with Hartman v. Nicholson, No. 02-1506), aff’d in part sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed.Cir.2007)); see also D’Amico v. West, 209 F.3d 1322, 1327 (Fed. Cir. 2000) (noting the five elements of a claim for service connection).

Duty to Identify Inferred Claims

Once VA has gathered all the reasonably obtainable information, including information submitted by the claimant, VA must decide whether or not to grant an award of benefits. In making that decision, VA must consider three other duties owed to the claimant: (1) duty to identify inferred claims, (2) duty to consider all reasonable legal theories, and (3) duty to maximize benefits. In other words, VA has several duties to apply the rules to the facts in a case in whatever way provides the most generous benefits allowed by the law.

These duties do not mean that VA has to look at every possible combination of rules and facts that may be even remotely possible. VA, however, has to review the entire record and apply the applicable provisions of law that are reasonably raised by the evidence. In addition, whether or not new claims are identified, VA must also review the diagnostic codes for the code or combination of codes that results in the highest benefit for the claimant.

Overall, in creating the duty to assist Congress recognized that VA raters are better trained and more experienced with the rules for obtaining benefits than the average claimant. VA must look for claims and grant awards based on all the evidence in the C-file whether or not the claimant asked for the specific benefit. This is a very good reason for claimants to provide as much information as possible when submitting applications or responding to VA requests.

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

What Disabled Veterans Must Know About Non-Adversarial System of the Veterans Law

Unique Aspects of Veterans Law

The basic operation of VA is very similar to other federal agencies. The legal requirements that VA must follow are created by Acts of Congress and codified in statutes. The VA Secretary, however, has very broad powers to prescribe the many rules and regulations “necessary or appropriate” to carry out those legal requirements. And, as long as the Secretary’s actions “are consistent” with the laws enacted by Congress, a court will not interfere with VA’s decisions.

Congress, however, has long recognized that veterans have earned special consideration for their service to the country. In recognition of this service, Congress has imposed several special duties and requirements on VA to ease the burden on veterans seeking benefits. Claimants should be aware of these special considerations because they provide a veteran with significant advantages in seeking an award.

There is a “basic principle of the VA claims process that claims will be processed and adjudicated in an informal, nonadversarial atmosphere, and that to ensure a just outcome under this rubric VA will assist claimants in many ways.”  Evans v. Shinseki, 25 Vet. App. 7, 14 (2011); EF v. Derwinski, 1 Vet. App. 324, 326 (1991) (stating that although the arguments made in a VA Form 9 appeal to the Board often frame the nature of that appeal: “there is nothing magical about the statements actually on the Form 9, given the VA’s non-adversarial process.”).  A claimant for VA benefits has avenues to seek redress before the Secretary within the non-adversarial VA system (motions for reconsideration at the Board, motions alleging clear and unmistakable error in Board or VARO decisions, requests for vacation of Board decisions based upon denial of due process, and even requests for equitable relief from the Secretary have long been available).  See 38 U.S.C. §§ 503, 5109A, 7103, 7111; 38 C.F.R. §§ 20.904, 20.1001, 20.1400.  

Unlike other federal benefits systems, such as the Social Security Administration process, the VA claims process is intended to be “non-adversarial, paternalistic, uniquely pro-claimant.” This means that VA is supposed to help claimants with obtaining an award, rather than opposing an award and forcing applicants to “prove” their claims by themselves. This does not mean that a claimant should “file and forget” a claim and expect VA to award a claim without questions, but Congress has removed or reduced many of the most burdensome aspects of obtaining federal benefits for VA claimants.

A significant advantage for veterans seeking benefits is that VA has no formal “pleading” requirements. This eliminates the need for a claimant to identify the specific benefits and the specific legal bases for an award when submitting a claim. Instead, VA claimants only have a general duty to file a “substantially complete” claim.

It is important to keep in mind that, even with the advantages provided by Congress, a VA claimant still has the responsibility to present and support a claim for benefits. This means that an application must provide enough information to allow VA to reasonably attempt to develop a claim to meet the legal requirements for an award. This is not a high threshold, but a claimant must meet it to have VA assist with a claim.

Filing an NOA under section 7266, however, demonstrates the exact opposite intent – a claimant’s intent no longer to pursue his claim for benefits through the Secretary, but instead to take the Secretary to court by seeking a legal review before the Court of the Secretary’s actions on his case.  This separation between VA and the Court was made even more emphatic when Congress passed the Veterans Education and Benefits Expansion Act, Pub. L. No. 107-103, 115 Stat. 976 (Dec. 27, 2001), and removed from section 7266 the requirement for a veteran to “furnish the Secretary with a copy of [an NOA].”  Bobbitt v. Principi, 17 Vet. App. 547, 552-53 (2004).

Filing an appeal to the Court thus is not an action within the “non-adversarial, manifestly pro-claimant veterans’ benefits system.”  Rather, a veteran’s appeal to this Court is the first step in an adversarial process challenging the Secretary’s decision on benefits.  See Forshey v. Principi, 284 F.3d 1335, 1355 (Fed. Cir. 2002) (en banc), cert. denied, 537 U.S. 823, 123 (2002) (“The veterans’ benefits system remains a non-adversarial system when cases are pending before the Veterans’ [sic] Administration.  However, the Court of Appeals for Veterans Claims’ proceedings are not non-adversarial.”).  Before the Court, the Secretary becomes a represented appellee in an appellate court adversarial proceeding.

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

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What Disabled Veterans Must Know About Compliance with VA Procedures

Compliance with VA Procedures

A key legal requirement for all claimants to be aware of is that VA must follow its own procedures, specifically including the M21-1MR, in deciding a claim.  The U.S. Supreme Court has stated that, “[w]here the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures.  This is so even where the internal procedures are possibly more rigorous than otherwise would be required” by statute or regulation.  Morton v. Ruiz, 415 U.S. 199, 235 (1974).  This is important when VA takes a “short cut” to save time or effort and then denies a claim.

The law is that even if a regulation requires less effort than a procedure used by VA in similar circumstances, VA cannot pick and choose when to follow its own rules and when not to do so.  See Castellano v. Shinseki, 25 Vet. App. 146, 151 n.2 (2011) (“[T]he Secretary must adhere to his own policies when adjudicating veterans’ claims.” (citing Morton, 415 U.S. at 235 (1974)).  Yet, 38 C.F.R. § 19.5 states that “[t]he Board is not bound by Department manualscirculars, or similar administrative issues.”

A claimant can and should identify any failure to follow the M21-1MR procedures that are relevant to his or her claim.  Compliance with the M21-1MR can also be reasonably raised by the record such that the Board should address the issue.  See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991) (Board must discuss provisions of law and regulation where they are made “potentially applicable through the assertions and issues raised in the record”).

A regional office’s failure to follow the M21-1MR and the Board’s failure to identify such issues frustrates judicial review, warranting remand.  See Tucker v. West, 11 Vet. App. 369, 374 (1998) (where “the Board has incorrectly applied the law, failed to provide an adequate statement of its reasons or bases for its determinations, or where the record is otherwise inadequate, a remand is the appropriate remedy.”); Allday v. Brown, 7 Vet. App. 517, 527 (1995) (holding that the Board’s statement “must be adequate to enable claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court”).

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