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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!

Visit: VA-Claims.org

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

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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!

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

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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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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

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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

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VA Apprenticeship Program to Train, Employ Veterans to Assist other Veterans in Properly Filing for VA benefits

Veterans service organizations (VSOs) play a major role as advocates for the Veteran community, and as partners with VA, to ensure this nation’s Veterans receive the benefits they have earned. An important part of this partnership is to support VSOs as they train their advisors on the benefit process.

VA’s Vocational Rehabilitation and Employment (VR&E) program recently entered in to an agreement with Paralyzed Veterans of America to participate in an apprenticeship program to train Paralyzed Veterans’ employees on how to assist Veterans to file for and obtain their benefits. A similar program is currently in effect with the Disabled American Veterans organization.

Paralyzed Veterans is an advocate for quality health care, spinal cord injury and disease research, VA benefits, and civil rights for Veterans and all people with disabilities. As a service oriented non-profit organization, Paralyzed Veterans employs national service officers to serve Veterans.

“The apprenticeship program with Paralyzed Veterans will put much needed resources into communities nationwide to work with our Veterans and assist them in applying for benefits,” stated Tim Johnston, supervisor for rehabilitation services at VR&E. “This not only gives those accepted into the program a skill, but ensures that Veterans in communities, large and small, have access to trained professionals who can help them understand the process and apply for those benefits they have earned and deserve.”

In a memorandum of understanding between the two organizations, Paralyzed Veterans will provide a 36-month on-the-job training program to qualified Veterans who are selected for the apprenticeship program. Most of the apprenticeship is supervised work with some classroom and on-line learning. These are full-time national service officer positions.

Pay during the apprenticeship is supplemented by the VR&E program. For the first 12 months, those selected for the program are paid $2,890 per month by Paralyzed Veterans, and an additional $651 from VA as a training allowance. In the remainder of the apprenticeship, Paralyzed Veterans pays $3,166.66, and VR&E pays $375 per month for training. The VR&E training allowance to the Veteran is tax-free. VA also pays for the training and necessary supplies.

Selection for the program generally comes from two sources. Paralyzed Veterans may notify VR&E that they have a candidate in mind, or a VA vocational rehabilitation counselor can recommend someone for the program.

The current memorandum of understanding will be in effect until May 2021.

How to apply

To be considered for this program, you must be receiving services from VA’s Vocational Rehabilitation and Employment  program. If you are not receiving services from the VR&E program, but would like to, you will need to apply.

To apply to VR&E, please go to eBenefits and click on Vocational Rehabilitation and Employment under Apply.  You may also submit a completed application (VAF 28-1900) at the local VA Regional or outbased office, or mail the completed application to the closest regional office. Remember: not all Veterans are eligible for VR&E benefits, but to become eligible, you must have a service-connected disability of 10 percent or more.

Next, after establishing eligibility, you must also be determined entitled for services under VR&E. Entitlement is based on the Veteran having an employment handicap affecting their ability to obtain and maintain employment. It is after you have been found entitled and you have had an opportunity(ies) to meet with your vocational rehabilitation counselor that you will discuss your interest in the apprenticeship program. If the apprenticeship program seems like a good fit, the counselor may recommend you for the program. Additionally, there must be a need within the local Paralyzed Veterans of America office for a trainee.

Paralyzed Veterans may also notify VR&E that they have a candidate in mind. This candidate must also be receiving VR&E services, or they will need to go through the process explained above.

If you have any further questions, please contact your local VR&E regional office. 

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 Claims Corner: The Importance of VA Medical Exams

Remember when you were in the military and your commanding officer or staff NCO threatened to “write you up” because you failed to get your vaccination or resolve another medical issue near deployment time? Back then, you didn’t have to be as proactive with your medical appointments because safety nets were in place (thanks to your gunny/first sergeant/senior master sergeant/chief petty officer!) to make sure you made it to sick call.

The transition from military to civilian life can make remembering to attend your scheduled medical appointments a little tricky – especially if you’re in the middle of a job search or attending college for the first time. However, it’s important you know that making your scheduled VA exams is essential to accurately processing your claim. VA assesses your exam results when determining service connection for your claimed medical condition. These medical examinations are scheduled by VA and are performed by either a VA physician or contracted physician. It’s important to note these exams aren’t always required to evaluate your medical conditions; however, in instances when they are needed, it’s important that you make every effort to show up!

During my time as a Veterans Service Representative, I would periodically see cases where a Veteran failed to report to his or her medical appointment. While we certainly understand that life can get in the way, missing an exam can have huge ramifications to your benefits to include:

  1. Denial of your original or reopened claim, or claim for increase. When you fail to report for an exam, your claim will be rated based on the evidence available in your record. This could be detrimental to your original claim because the exam results could provide the necessary evidence needed to satisfy service connection. In reopened claims, the exam results may provide the new and material evidence needed to overturn a prior VA decision or, in the case of a claim for increase, show that your condition has worsened.
  2. Reduction or termination of your current benefits. When you fail to report for a reexamination of a running entitlement, VA, under law, is required to issue you a notice that proposes to either reduce or terminate your monthly benefit if an examination is needed to maintain a current rating.
  3. Delay in the decision of your pending claim. Examination requests are in high demand. Rescheduling can delay the processing of your claim and a final decision from VA.

In order to avoid these potential pitfalls, follow these simple tips:

  1. Keep your scheduled exam whenever possible.
  2. Can’t make it? Tell VA immediately by phone, online, or in person. We may be able to reschedule your exam date.
  3. Make sure your address and phone number is up-to-date in eBenefits. VA will attempt to notify you of an exam by letter and telephone. I’ve personally seen countless amounts of returned mail because applicants moved without notifying VA. The easiest and quickest way to update your address and telephone number is through eBenefits.

More information on this topic can be found in 38 Code of Federal Regulation 3.655.

As always, if you still have questions, a VA representative or a Veterans Service Organization may be able to help.

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 Claims Corner: What to Expect at Your C&P Exam

When I attended my first compensation or pension (C&P) medical examination several years ago, I didn’t really know what to expect  — I had little information so I was unprepared, and a little anxious before and during my appointment.

I don’t think I’m alone. For some of us, attending a C&P exam for the first time can be stressful — they’re very different from the exams we’ve had in the military or private sector. So it’s understandable how going through an unfamiliar process like a C&P exam for the first time, or even the second time, may cause anxiety.

When I was in the Marine Corps, I found having a bit of intel before entering any situation helpful in alleviating my fear of the unknown.

Here’s what I found helpful:

  1. Your examiner doesn’t decide whether or not your condition is service connected – VBA claims processors do. C&P exams are tools used by claims processors to either collect missing evidence or clarify information in your claim. A complete C&P exam is just one part of the complete body of evidence from which claims processors must consider when making their decision.
  2. Keep in mind, that not all our contentions will require VA examinations. In some cases, claims processors may have enough evidence in hand to make a decision without the need for a C&P examination.
  3. If you’re scheduled for an exam, it’s important that you make every effort to show up! Missing a scheduled exam could adversely affect your claim. You can read more about this in my previous blog ‘Claims Corner: the importance of VA exams.’

As always, if you still have questions, a VA representative or a Veterans Service Organization may be able to help.

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