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

How Clear And Unmistakable Error Affects VA Disability Claims

A decision that has become final may not be reversed or revised in the absence of a showing of CUE.  38 U.S.C. § 7111(a).  CUE “is a very specific and rare kind of error . . . that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error.”  38 C.F.R. § 20.1403(a).

The Court has no jurisdiction to consider a CUE claim it in the first instance.  38 U.S.C. § 7252(a); Andrea v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002) (holding that “each ‘specific’ assertion of CUE constitutes a claim that must be the subject of a decision by the [Board] before the Veteran’s Court can exercise jurisdiction over it”); Russell v. Principi, 3 Vet. App. 310, 315 (1992) (en banc) (noting that “[t]he necessary jurisdictional ‘hook’ for this Court to act is a decision of the [Board] on the specific issue of ‘clear and unmistakable error'”).VA law allows a veteran – at any time – to request that a decision be reviewed and corrected if VA committed a “clear and unmistakable error” (often called a “CUE”). This is a very powerful right. Unfortunately, it is also a widely misunderstood and a misapplied right.  A true CUE is not common and is a difficult claim to win.

A request for revision of a decision based on CUE is an exception to the rule of finality and is grounds to reverse or revise a decision by the Secretary.  38 U.S.C. §§ 5109A, 7111; DiCarlo v. Nicholson, 20 Vet. App. 52 (2006); 38 C.F.R. §§ 3.105(a), 20.1400-1411.  A CUE motion is a collateral attack on a final VA regional office decision or Board decision.  Disabled Am. Veterans v. Gober, 234 F.3d 682, 696-98 (Fed. Cir. 2000).

A CUE is a special type of error and a claim for revision of a previous denial on the basis of CUE can be filed at any time, even years or decades after the claim was decided or the appeal denied.

  • (1) Claim must be a “closed claim” also known as a “final decision” for a CUE review.  The finald decision must be from the VARO, Veterans Administration Regional Office, or the BVA, Board of Veterans Appeals and was never appealed, and
  • (2) either the correct facts were not before the adjudicator or the statutory or regulatory provisions in existence at the time were incorrectly applied; and
  • (3) the error is “undebatable;” and
  • (4) the error must make a difference in the outcome. In other words, a CUE is not a disagreement with a decision or an argument that VA got it wrong.

When CUE does occur and a claim is granted, the usual rules for setting the effective date of an award is by-passed. The effective date of a CUE claim goes back all the way to the filing date of the claim with the CUE. This can result in huge awards of retroactive benefits.

Because a claim for CUE is a review of an already “closed claim” also known as “final decision claim”, special rules apply:

  1. the “duty to assist” does not apply. This means that VA does not help a claimant with a CUE claim.
  2. a CUE claim must contain specific and detailed statements regarding the error:
    1. how that error affected the decision, and
    2. why the decision would be different (more favorable to the claimant) if the error is corrected. Merely stating that CUE occurred or general statements similar to those in a benefits claim are not enough. For example:  a decision awarding benefits based on a single gunshot wound when the veteran had two gunshot wounds is a CUE. A CUE claim asserting that a gunshot wound was more painful than VA concluded is clearly not a CUE.

Undebatable:

Further, the alleged error must be “undebatable,” not merely “a disagreement as to how the facts were weighed or evaluated.”  Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc).  The error must have “manifestly changed the outcome” of the decision being attacked on the basis of CUE at the time that decision was rendered.  Id. at 313-14, 320; see Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999) (expressly adopting the “manifestly changed the outcome” language in Russell).  A mere disagreement with how the facts were weighed or evaluated is not enough to substantiate a CUE claim.  Damrel v. Brown, 6 Vet. App. 242, 246 (1994).

CUE WARNING:

A veteran can only claim CUE one time for each decision. This means that if a claimant files a CUE claim and the VA finds that the claim does not contain the required level of detail, that CUE claim is lost forever. For this reason, claimants who believe that they have a possible CUE claim are strongly urged to seek advice from a VSO, registered agent, or experienced attorney.

Errors that cannot constitute CUE, pursuant to 38 C.F.R. sections 20.1403(d) and (e), include:

(1)   a changed diagnosis, where a “new medical diagnosis . . . ‘corrects’ an earlier diagnosis considered in a Board decision;”

(2)   VA’s failure to comply with the duty to assist;

(3)   a “disagreement as to how the facts were weighed;” and

(4)   a subsequent change in interpretation of the statute or regulation that was applied in the Board decision.

Jordan v. Nicholson, 401 F.3d 1296, 1298-99 (Fed. Cir. 2005); cf. Cook, 318 F.3d at 1346 (“The requirements that [CUE] be outcome determinative and be based on the record that existed at the time of the original decision make it impossible for a breach of the duty to assist to form the basis for a CUE claim.”); see also MacKlem v. Shinseki, 24 Vet. App. 63 (2010); Damrel, 6 Vet. App. at 246; Fugo, 6 Vet. App. at 43-44.

When the Court reviews a Board determination that there was no CUE in a prior final decision, the Court’s review is generally limited to determining whether the Board’s conclusion is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 38 U.S.C. § 7261(a)(3)(A), and whether it is supported by adequate reasons or bases.  38 U.S.C. § 7104(d)(1); Joyce v. Nicholson, 19 Vet. App. 36, 43-44 (2005); Lane v. Principi, 16 Vet. App. 78, 83-84 (2002), aff’d, 339 F.3d 1331 (Fed. Cir. 2003); Eddy v. Brown, 9 Vet. App. 52, 57 (1996); Archer v. Principi, 3 Vet. App. 433, 437 (1992); Russell v. Principi, 3 Vet. App. 310, 315 (1992). However, whether the claimant has presented a valid CUE allegation and whether an applicable law or regulation was not applied are questions of law that are reviewed de novo.  Joyce, 19 Vet. App. at 43; see also Kent v. Principi, 389 F.3d 1380, 1384 (Fed. Cir. 2004).

The U.S. Court of Appeals for the Federal Circuit has held that “a veteran’s assertion of a particular clear and unmistakable error by the RO constitutes a distinct claim.”  Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002).  Because the “Federal Circuit equates ‘issue’ with a ‘claim’ and not a theory or element of the claim,” “an appellant has only one opportunity to raise any allegation of clear and unmistakable error for each claim decided in a Board decision and any subsequent attempt to raise a clear and unmistakable error challenge to the same claim contained in a Board decision will be dismissed with prejudice.”  Hillyard v. Shinseki, 24 Vet. App. 343, 354 (2011); 38 C.F.R. § 20.1409(c).  A claimant, thus, has only one chance to file a CUE claim on a prior decision.  Id.

Although CUE does not require “pleading with exactitude,” it nevertheless must be plead with “some degree of specificity.”  Jordan v. Principi, 17 Vet. App. 261, 270-71 (2003) (finding that although “the liberal construction of a VA claimant’s pleading must be tempered somewhat in CUE cases” that “does not require pleading with exactitude”); Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002).  Assertions of CUE raised by counsel, however, are not entitled to a liberal reading.  See Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (distinguishing between filings by counsel in direct appeals to the Board and assertions of CUE, and holding that filings in direct appeals to the Board must be read liberally, whether filed by counsel or claimant).  Massie v. Shinseki, 25 Vet. App. 123, 131 (2011); MODEL RULES OF PROF’L CONDUCT R. 1.1 (Competence), 1.3 (Diligence); U.S. VET. APP. R. ADM. & PRAC. 4(a) (adopting the Model Rules of Professional Conduct as disciplinary standard for practice).  Perfection of an appeal for a claim involving CUE involves the same steps as any other claim.  38 U.S.C. § 5109A(e) (“[CUE claims] shall be submitted to the Secretary and shall be decided in the same manner as any other claim.”); see Andre, 301 F.3d at 1361 (Fed. Cir. 2002) (holding that “each ‘specific’ assertion of CUE constitutes a claim that must be the subject of a decision by the [Board] before the Veterans Court can exercise jurisdiction over it”).

The VCAA does not apply to CUE actions.  See Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding VCAA does not apply to Board CUE motions); Baldwin v. Principi, 15 Vet. App. 302 (2001) (holding VCAA does not apply to RO CUE claims).  In other words, the VA has no duty to assist claimants with CUE claims.  See Livesay, 15 Vet. App at 178 (noting that the CUE “movant bears the burden of presenting . . . specific allegations of error”); 38 C.F.R. § 20.1404 (“The motion must set forth clearly and specifically the . . . errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error.”); see also Andrews v. Nicholson, 421 F.3d 1278, 1283 (Fed. Cir. 2005) (noting that the duty to read pro se filings sympathetically applies to CUE motions); Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009) (whether a sympathetic reading of a veteran’s filing raises a valid claim is a factual inquiry, reviewed under the “clearly erroneous” standard).

The spouse of a deceased claimant has no right to file a CUE claim because “a survivor has no standing to request review of a decision affecting the disability benefits of a veteran on the ground of CUE” as 38 U.S.C. section 5109A does not “provide[] for another person, even a survivor, to seek correction of a decision on a veteran’s claim.”  Haines v. West, 154 F.3d 1298, 1301 (Fed. Cir. 1998).

Reference: 38 C.F.R. 20.1403

§ 20.1403 Rule 1403. What constitutes clear and unmistakable error; what does not.

 (a) General. Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied.
 (b) Record to be reviewed—
  •  (1) General. Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made.
  •  (2) Special rule for Board decisions issued on or after July 21, 1992. For a Board decision issued on or after July 21, 1992, the record that existed when that decision was made includes relevant documents possessed by the Department of Veterans Affairs not later than 90 days before such record was transferred to the Board for review in reaching that decision, provided that the documents could reasonably be expected to be part of the record.
 (c) Errors that constitute clear and unmistakable error. To warrant revision of a Board decision on the grounds of clear and unmistakable error, there must have been an error in the Board’s adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable.
 (d) Examples of situations that are not clear and unmistakable error—
  •  (1) Changed diagnosis. A new medical diagnosis that “corrects” an earlier diagnosis considered in a Board decision.
  •  (2) Duty to assist. The Secretary’s failure to fulfill the duty to assist.
  •  (3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated.
 (e) Change in interpretation. Clear and unmistakable error does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation.
(Authority: 38 U.S.C. 501(a)7111)

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 Disabled Veterans Should Know About the St. Louis Fire and the VA Medical Records

In 1973 there was a fire at the National Personnel Records Center (“NPRC”) in St. Louis. The NPRC is an official repository for records of military veterans who served in the United States Army, Navy, Air Force, Marine Corps, and Coast Guard. This event is important to many veterans because a large number of military service records were destroyed. The “fire” has become something of an urban legend because VA sometimes cites it as reason for not obtaining a veteran’s service records, sometimes even when the veteran left service after the fire occurred. According to a VA “Fact Sheet,” the fire destroyed about 80% of Army records for persons discharged between November 1912 and January 1960 and about 75% of Air Force records for persons discharged between September 1947 and January 1964. Because of poor recordkeeping and loaning of records, it is not possible to say for sure exactly which records were destroyed within these groups.

No other records were lost in the fire. VA itself has stated that records for veterans who left service after 1964 were not affected and that only Army and Air Force records were involved (no Navy records were affected). Clearly, records for veterans who left service after 1973 could not have been destroyed in a 1973 file. As a result, any time the “fire” is cited as a reason for VA not locating service records, veterans should take the time to determine if the record could have been affected and, if not, challenge the VA’s conclusion.

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 Effective Date Affects VA Original and Re-opened Disability Compensation Claims

The determination of the effective date for an original claim or a reopened claim is governed by 38 U.S.C. section 5110(a), which provides: “Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim [or] a claim reopened after final adjudication . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.”  The implementing regulation similarly states that the effective date shall be the date of receipt of the claim or the date entitlement arose, whichever is later, unless the claim is received within one year after separation from service.  See 38 C.F.R. § 3.400.  “Generally, effective dates of compensation awards are attached to the date of receipt of the application for benefits, and no earlier.”  Sharp v. Shinseki, 23 Vet. App. 267, 273 (2009) (citing 38 U.S.C. § 5110(a)).  Significantly, “the effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA.”  Lalonde v. West, 12 Vet. App. 377, 382 (1999); seeBrannon v. West, 12 Vet. App. 32, 35 (1998) (the “mere presence of medical evidence does not establish the intent on the part of a veteran to seek service connection for a condition.”).

The effective date may also be the date on which entitlement to the benefit arose, if later than the date of the claim.  38 C.F.R. § 3.400(o).  A challenge to a decision assigning an effective date with which a claimant disagrees may be made through a direct appeal of the decision, commencing with the timely filing of a Notice of Disagreement.  38 U.S.C. § 7105.  The NOD must be in writing and filed within one year “from the date of mailing of notice of the result of initial review or determination.”  38 U.S.C. § 7105(b)(1).  Rowell v. Principi, 4 Vet. App. 9, 17 (1993); Cuevas v. Principi, 3 Vet. App. 542, 546 (1992).  Alternatively, if the decision assigning an effective date has become final, a claimant may only pursue one of the statutory exceptions to challenge the finality of that decision.  See DiCarlo v. Nicholson, 20 Vet. App. 52, 56-57 (2006) (discussing the types of collateral attack authorized to challenge a final decision by the Secretary); see also Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc) (same).

However, in Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006), the Court held that claimants may not properly file, and VA has no authority to adjudicate, a freestanding earlier-effective-date claim in an attempt to overcome the finality of an unappealed RO decision.  The Court reasoned that to allow such claims would vitiate the rule of finality. Id. Although there are numerous exceptions to the rule of finality and application of res judicata within the VA adjudication system, a freestanding claim for an earlier effective date is not one of the recognized statutory exceptions to finality.  See DeLisio v. Shinseki, 25 Vet. App. 45, 51 (“[A]n effective date generally can be no earlier than the date of the claim.”); Canady v. Nicholson, 20 Vet. App. 393, 398 (2006) (holding that a “proper effective date is a finding of fact” reviewed under the “clearly erroneous” standard).

A claimant may establish an effective date earlier than the date of the claim if the claimant is able to show an increase in disability in the one-year period preceding the claim. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007) (“When a claim for an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that timeframe.”); Dalton v. Nicholson, 21 Vet. App. 23, 34 (2007) (“Board is required to search the record to determine whether it is factually ascertainable that in the one year prior to the application there was an increase in disability.”); Harper v. Brown, 10 Vet. App. 125, 126-27 (1997) (noting that the general rule applies unless it is factually ascertainable that the increase occurred within the year preceding the filing of the claim); see also Scott v. Brown, 7 Vet. App. 184, 189 (1994) (under the terms of section 5110(b)(2), the effective date is either the date of the claim or “some date in the preceding year if it were ascertainable that the disability had increased in severity during that time”).

In other words, the actual increase in disability must have occurred during the one-year period immediately preceding the date of the claim; any evidence demonstrating an increase earlier than the one-year period is not a basis for an effective date earlier than the date of the claim.  The Board’s determination of the proper effective date for an award of VA benefits is a finding of fact reviewed under the “clearly erroneous” standard of review set forth in 38 U.S.C. § 7261(a)(4).

There are only two ways to establish an earlier effective date after a decision has become final:  (1) by establishing a “Clear and Unmistakable Error” was made or (2) by submitting official service department records that existed, but were not considered, in a decision.  See 38 U.S.C. §§ 5109A, 7111; 38 C.F.R. §§ 3.156(c); 20.1403.  As discussed elsewhere in this Knowledge Book, CUE is a “very specific and rare kind of error” that has special pleading requirements.  Section 3.156(c), however, is fairly straightforward.  If VA or a claimant discovers a service department record, such as a service record, service medical record, or unit report or log, and it is relevant to a previous decision, VA must reconsider that decision.  If reconsideration of the claim with the newly found record results in an award, the effective date of that award is the date that the originally denied claim was submitted, no matter how far back.  38 C.F.R. § 3.156(c)(3).

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 VA Disability Claims Nexus Letter

A “nexus letter” is a document prepared for a claimant by a medical professional that explicitly connects an in-service event to the current medical condition for which a claimant is seeking compensation. A claimant is not required to submit a nexus letter, but such a letter can make the difference between an award and a denial. A nexus letter can be submitted with an initial application, during claim development, or after an adverse C&P exam. Submitting a properly worded nexus letter as early as possible in the process, however, is good practice.

A nexus letter is especially important in cases where a claimant has not submitted any medical evidence and a C&P examiner concludes that there is no connection between a claimant’s condition and military service. Without a nexus letter, the claim will be denied. Even when a claimant supplies supporting medical evidence with an application, VA raters can and often do choose the opinion of the VA examiner over a private physician’s opinion for many reasons. In such a case, a “nexus letter” from a private physician is necessary to respond to the C&P examiner’s conclusion.

One reason for raters favoring VA examiner’s conclusions regarding a nexus when there are conflicting or unclear medical opinions is that VA examiners are more familiar with the terms that raters look for when deciding a claim. As described above, VA regulations require only that it be “at least as likely as not” that a condition be related to service for an award. This means that the likelihood of service connection is equal to or greater than 50% (a 50/50 chance or better).

Most medical professionals, however, are not familiar with the VA system or the VA concept of “at least as likely as not.” Physicians are generally familiar with the concept of “medical certainty,” which is a much higher standard than that required by VA. As a result, private physicians may apply the wrong standard if the VA terms are not explained to them. Even then, a private physician may be reluctant to state a conclusion regarding nexus and, if they do, may qualify their conclusion with terms such as “may,” “could,” “suggests,” or “possibly.” VA will often point to such qualifying terms as not meeting the legal standard for establishing a nexus, although the physician actually believed that the condition was more than 50% likely service connected.

To prevent such misunderstandings, a claimant should make sure that the medical professional asked to provide a nexus letter understands the importance of the letter and of using the VA “magic words” to correctly state the physician’s medical opinion. The terms “more likely than not” (meaning greater than 50% likelihood of a connection) and “at least as likely as not” (meaning equal to or greater than 50% likelihood of a connection) are important to use so that VA will have to recognize the nexus letter as supporting service-connection. Any other terms may be misunderstood or misconstrued by VA into something not supporting service-connection. Bringing the relevant C&P Examination Worksheet to the examination or providing it to the medical professional may be helpful.

The Court has stated that “when a nexus between a current disability and an in-service event is ‘indicated,’ there must be a medical opinion that provides some nonspeculative determination as to the degree of likelihood that a disability was caused by an in-service disease or incident to constitute sufficient medical evidence on which the Board can render a decision with regard to nexus.”  McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006) (emphasis added).  The Court has also noted that medical evidence that is too speculative to establish nexus is also insufficient to establish a lack of nexus; a VA medical examination must be undertaken to resolve the nexus issue.  Id. (citing Forshey v. Principi, 284 F.3d 1335, 1363 (Fed. Cir. 2002) (Mayer, C.J., and Newman, J., dissenting) (“The absence of actual evidence is not substantive ‘negative evidence'”)).  Jones v. Shinseki, 23 Vet. App. 382, 387-88 (2010).

If the Board finds his or her testimony credible, a claimant does not need competent medical evidence to substantiate his or her claim.  See Savage v. Gober, 10 Vet. App. 488, 495–96 (1997) (holding that, per 38 C.F.R. section 3.303(b), medical evidence of nexus is not required for benefits if the veteran demonstrates continuity of symptoms between his present disability and service); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  Arneson v. Shinseki, 24 Vet. App. 379, 388 (2011).

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