VA Service Connected Disability Benefits The Basics Robert E. - - PDF document

1 VA Service Connected Disability Benefits – The Basics Robert E. Norton Burke Harvey, LLC 3535 Grandview Parkway, Ste. 100 Birmingham, AL 35243 (205) 747-1906 rnorton@burkeharvey.com I. Overview There are approximately 21.8 million living veterans of the United Stated military.1 Roughly 837,000 of them are veterans of the two most recent Gulf Wars.2 For those veterans who have been injured as a result of their military service, the VA provides service-connected disability benefits. To qualify for those benefits, a veteran must have: a current disability, incurred in or aggravated by his or her military service, and must not have been dishonorably discharged. While these requirements are simple and straightforward in theory, in practice the system can be extremely difficult to navigate and frustrating for veterans who do not have legal representation. The VA disability claims backlog and delays experienced by veterans are notorious and have been well-documented in the media and panned by The Daily Show. The VA offers a wide variety of benefits to veterans, including but not limited to: health care, need-based pension benefits, GI Bill education benefits, home loans, and aid and attendance benefits for homebound veterans. The focus of this presentation will be to provide a basic overview of the service connected disability benefit claims and

1U.S. Census “How Do We Know? A Snapshot of Our Nation’s Veterans”

http://www.census.gov/library/infographics/veterans.html (last accessed December 4, 2015)

2 Id.

2 appeals process to attorneys looking to get started in guiding a veteran through the VA system. A. Accreditation The VA permits both attorneys and non-attorneys to represent veterans in their claims and appeals. Non-attorneys, however, must pass a test in order to become accredited to represent veterans. Licensed attorneys do not have to pass a test, but must complete VA Form 21a (see Appendix) and must complete 3 hours of qualifying CLE during the first 12 month period after their initial accreditation. Please pay careful attention to the “after” requirement so you don’t waste money on a CLE before the VA has issued accreditation. To be “qualifying” the CLE “must be approved for a minimum

• f 3 hours of CLE credit by any State bar association and, at a minimum, must cover the

following topics: representation before VA, claims procedures, basic eligibility for VA benefits, right to appeal, disability compensation (38 U.S.C. Chapter 11), dependency and indemnity compensation (38 U.S.C. Chapter 13), and pension (38 U.S.C. Chapter 15).” 38 C.F.R. § 14.629(b)(1)(iii). Attorneys must obtain an additional 3 hours of qualifying CLE credit every two years thereafter and submit an annual certificate of good standing to the VA. 38 C.F.R. § 14.629. Attorneys may only charge veterans a fee for work done on the appellate level of a claim. Attorneys may not collect a fee for assisting a veteran with filling out paperwork

• r filing a new claim for benefits, even if the claim is approved without appeal. Only

after a denial or an unfavorable decision and the filing of a “Notice of Disagreement” (“NOD”) with that decision may an attorney be eligible to collect a fee for his or her

• service. Attorneys’ fees in VA cases are not capped, but are applicable only to any

3 back pay recovered for the veteran - usually but not always dating back to the original claim date. The VA considers a twenty percent (20%) or less contingency fee agreement to be presumptively reasonable and will deduct the attorney’s fee from the back payment and pay the attorney directly on any fee agreement at or below that

• amount. Attorneys who wish to charge a higher percentage are left to attempt to collect

their fee from their client, therefore 20% is the typical fee charged by attorneys in VA benefits appeals. Veterans appoint a representative by submitting VA Form 21-22a, which is included in the Appendix. Representatives must also submit a copy of their attorney/client contingency fee agreement to the VA. B. The Legal Standard Applicable to Claims and Appeals The VA claims and appeals system is, in theory, supposed to be a pro-claimant

• process. The VA has a duty to assist the veteran in establishing entitlement to benefits

and the standard applied is a relaxed preponderance of the evidence: a veteran only needs to show a 50/50 likelihood that the claimed disability exists and is causally connected to military service. The standard is “at least as likely as not;” in other words, the tie goes to the veteran. Codified VA law, rules, and regulations can be found in Title 38 of the United States Code and in Title 38 of the Code of Federal Regulations. 38 U.S.C. § 11 contains the law on disability compensation, service connection, and presumptions. Section 51 covers claims, effective dates, payments, and claim adjudication procedures. Section 71 covers appeals to the Board of Veterans’ Appeals (“BVA”). 38 C.F.R. parts

4 3, 4, 14, 19, and 20 cover adjudication rules and procedures, the disability ratings schedule, accreditation requirements, and appeals to the BVA, respectively. Additional sources of VA benefits law include decisions from the Board of Veterans Appeals (“BVA”), the U.S. Court of Appeals of Veterans Claims, the U.S. Court of Appeals for he Federal Circuit, and VA General Counsel Opinions. II. Making a Disability Claim As stated above, to be eligible for VA service connected disability benefits, the applicant must be: 1. A veteran, discharged under conditions other than dishonorable, 2. Currently disabled (and not as a result of the veteran’s willful misconduct

• r alcohol or drug abuse), as determined by someone qualified to render a medical

diagnosis, and 3. Able to prove a connection or “nexus” between the veteran’s military service and the current disability. If a veteran was treated in service for a back injury but was fine when discharged and then suffered a back injury years later in an intervening auto accident, his or her claim for service connected benefits will be denied. The claimed disability must be ongoing and related to the veteran’s military service. Again, this must be proven by medical evidence. However, the disability claimed CAN be secondary to another service-connected

• disability. For example if a veteran’s service-connected reflux causes erosion of the

teeth or gums, both the reflux and the secondary dental problems may be compensable. There are also certain disabilities that are presumptively service connected, if the veteran was on active duty for 90 days and the disease manifested itself to a degree of

5 10% disability within the condition’s presumptive period, there is a rebuttable presumption of service connectivity. Examples of some presumptive conditions include but are not limited to: tropical diseases, diseases specific to radiation exposure, agent

• range exposure, mustard gas exposure, diseases of former prisoners of war, and

diseases of certain undiagnosed conditions of Gulf War veterans. Veterans can also receive benefits if an old injury is aggravated by military service, as veterans enter the military with a “presumption of soundness” that is rebuttable only by “clear and unmistakable evidence.” 4. The veteran’s claimed disability must also be compensable on the VA’s disability ratings schedules, 38 C.F.R. part 4. The effective date of a claimed VA disability is the later of two dates: 1) when the veteran filed his or her claim for benefits, or 2) the first date that the evidence in the medical record supports a veteran’s claim that a service connected disability exists. There is no time limit for filing a claim, however there are time limits for appealing a denial or unfavorable claim. A veteran who waits more than a year to appeal a denial or unfavorable claim must file a request to reopen the claim if the veteran has new and material evidence to present. The claim’s effective date will then be pushed forward to the date the request to reopen is filed unless the veteran can show that the VA’s denial was made based on a “clear and unmistakable error” (“CUE”) by the VA. A successful CUE appeal would maintain the original effective date of the claim even if brought more than a year after the VA’s initial decision. The VA’s duty to assist certainly applies to the initial claim process, in which the VA has a duty to assist the claimant in gathering evidence, ensure that the claimant has

6 the necessary forms available to him or her, and to notify the claimant if the VA needs any additional information. The VA also has a duty to consider any legal claim that is raised or reasonably inferred by the veteran’s submission and to consider every legal theory that could support a claim for benefits. A veteran can file a claim online, by mail, or in person at their VA regional office. A veteran can call the VA at 1-800-827-1000 to request the forms necessary in filing a claim and to find out the location of their regional office to file a claim. Again the VA has a duty to assist the veteran in providing this information. To file a claim by mail the veteran would complete and submit VA Form 21-526EZ, along with supporting evidence such as discharge paperwork, military medical records, civilian medical records, and statements in support of the claim. If a veteran has enough of this type of documentation pre-filing, then the veteran would want to consider filing a “fully developed” claim, under the VA’s new program for making an expedited decision for veterans who claim to be submitting all documentation necessary support of the claim at the time of filing. The length of time the VA will take to process an initial claim varies greatly based on the workload of the regional office where the claim is filed (this applies to the processing time for appeals as well). For example, the same claim that is decided in twelve months in Atlanta might be decided in as few as four months in South Dakota. Unlike some other areas of disability benefits practice with which you may be familiar, a VA disability benefits award is not an all or nothing proposition. For almost all

• f the disabilities rated by the VA, there is a sliding scale of benefit ratings from 10% to

100% based on the severity of the veteran’s symptoms. A full printout of the complete

7 ratings schedule would fill a notebook - I have included in the appendix an example of a ratings table for mental disorders, including Post Traumatic Stress Disorder. If a veteran has multiple rated disabilities, these ratings are combined (based on a table I have attached in the Appendix) to provide the veteran with an overall rating that will determine (along with the veteran’s marital status and number of dependents) the rate

• f the veteran’s monthly compensation.

Additionally, a veteran who is totally unable to work due to his or her service connected disability may apply for benefits based on a Total Disability due to Individual Unemployability (“TDIU”). If approved, a TDIU benefit pays the veteran at a 100% rating level even if the veteran’s combined rating is under 100%. To qualify, the veteran must meet all of the other disability benefit requirements, must be totally unable to work due to a service connected disability, and must have one service connected disability benefit rated at 60% or higher OR two or more disabling conditions with at least one condition rated at 40% or higher. A veteran whose initial claim is denied outright, is granted but at a lower rating percentage than the veteran feels is justified, or is otherwise unfavorable to the veteran (perhaps because it failed to consider a claim explicitly raised by the veteran or reasonably implied by the veteran’s submission) has one year from the date of the VA’s decision to begin the appellate process by filing a Notice of Disagreement (“NOD”). III. The Appeals Process A. Notice of Disagreement A veteran who wishes to challenge all or part of a VA rating decision must do so within one year of the unfavorable decision by submitting a Notice of Disagreement to

8 the VA. For most attorneys handling a VA disability benefits case, this is where our work begins. The VA has just this year published Notice of Disagreement VA Form 21- 0958 for use in filing Notices of Disagreement. Please see the Appendix for a copy of this document. A Notice of Disagreement simply informs the VA of the date of the decision with which the veteran disagrees and the basis for the disagreement. Another relatively recent development by the VA is the use of two Evidence Intake Centers for handling the intake and processing of all paperwork for all VA appeals around the country. The applicable evidence intake center varies by state and I have included the lists in the Appendix. The evidence intake center accepts all documents related to an appeal and forwards the document to the appropriate regional

• ffice.

PRACTICE TIP: Always submit documents to the VA in a way that allows you to track or confirm the VA’s receipt of the document. VA attorneys may be among the last holdouts still using fax machines, but it’s my preferred method for submitting documents to the Evidence Intake Center. The Evidence Intake Centers are an attempt by the VA to streamline and organize what had been a sloppy process for receiving paperwork on appeals. The system is better but still not perfect; your ability to prove to the VA that they did in fact receive a document from you may save a claim or an effective date for your client. B. Choice of Initial Appellate Track When filing a NOD, a veteran can choose one of two options for the next stage of the appeal. First, the veteran may opt for de novo review of the denial by a Decision Review Officer (“DRO”) at the local regional office. The DRO reviews the claim and all

9 supporting documentation with fresh eyes and may overturn the decision and issue a new award relatively quickly and based solely on the paperwork, without the need for the veteran to appear and give testimony. If the DRO agrees with the initial award then the VA will issue a Statement of the Case and the appeal proceeds to the Board of Veterans Appeals (“BVA”). Option two for the veteran when filing a notice of disagreement is to skip the DRO and go straight to the BVA. I recommend using the DRO process simply because the veteran has nothing to lose except (by VA appeals standards) a relatively small chunk of time - in Alabama DRO decisions typically are made within 9 months - and I have had a number of appeals overturned at the DRO stage, which is always a great result for the veteran. If the DRO does deny the appeal and the VA issues a Statement of the Case (“SOC”), the SOC is simply a legal opinion from the VA, much like legal brief, detailing the legal and factual basis for the VA’s denial of the veteran’s claim. The SOC date triggers a (typically) 60-day deadline for filing VA Form 9, which is a formal appeal to the Board of Veteran’s Appeals (see Appendix). A veteran must file Form 9 within 60 days

• f the date of the SOC or within one year of the original claim date, whichever is later

(and it will almost always be the 60th day after the SOC because the VA doesn’t process claims quickly enough for there to be any of the initial year from the date of filing left). It is also possible that at some point during the appeal, the VA may issue a Supplemental Statement of the Case (“SSOC”), which the VA may use to deny a part of the veteran’s claim not covered by the initial SOC, or to supplement part of its legal or

10 factual grounds for denial stated in the SOC. Caution: the deadline for responding to a SSOC is only 30 days, half the time you would have to respond to an SOC. However, if you have already submitted the Form 9 formal appeal for the claim covered by the SSOC, a response to or disagreement with the SSOC is optional. When submitting a Form 9, the veteran will again list all bases of his or her disagreement with the VA’s decision with as much factual and legal support as possible. Further, the veteran has the option to have or waive a hearing before a BVA judge. The fastest route to a decision is to waive the hearing and have the veteran submit a sworn statement, however in my experience this is an unpopular option with veterans because they wish to have their day in court to tell their story and make their case to a live

• person. For that, there are three options, the fastest being to have a videoconference
• hearing. The veteran and the veteran’s representative travel to the veteran’s local

regional office and are connected via videoconference to a BVA judge in Washington, D.C. The veteran is sworn in and is asked questions by his or her counsel and/or the judge regarding the veteran’s claims. A second hearing option is to wait for a BVA judge to come to the veteran for live testimony, however this is the most lengthy wait for a hearing as the judges do not travel frequently and can only hear a limited number of cases when they do. Finally, the veteran can opt to travel to Washington, D.C. for an in- person hearing but this option has obvious pitfalls of time and expense for both the veteran and his or her counsel. In my experience the most popular option with the veterans is to have a live videoconference hearing at their regional office. A BVA judge can affirm the unfavorable decision, overturn the decision and issue a new award, or remand the case to the regional office for further development. The

11 BVA appeal is non-adversarial, no lawyer for the VA appears to contest the veteran’s appeal, the VA’s duty to assist still applies, and the BVA judge can consider new evidence added to the file by the veteran. If the veteran wishes to appeal a decision by a BVA judge, the next appellate level is to the Court of Appeals for Veterans Claims (“CAVC”). At this stage, the process becomes adversarial and the VA is represented by counsel. The appeal is from the final BVA decision only and the claim file becomes closed and the record can no longer be supplemented by the veteran. Only veterans or their survivors can appeal a BVA decision to the CAVC, the VA cannot appeal a BVA decision in favor of the

• veteran. Beyond the CAVC are the U.S. Court of Appeals for the Federal Circuit and

the U.S. Supreme Court, but as a practical matter virtually no VA benefits cases make it to this level. IV. Developing Evidence to Support Your Claim Ideally, this step will have been taken before the claim is ever filed, however if your client is a veteran coming to you with an already unfavorable VA decision, the odds are strong that much of the evidence needed to support the claim was not gathered at the outset. As a first step, you’ll want to get a copy of the VA’s entire claim file (“C-file”) for the veteran. (VA Form 3288 can be used to obtain a copy of the C-file.) This file will contain all documents related to the veteran’s claim and any denials or correspondence related to the claim. Also, the claim file may contain the veteran’s discharge paperwork, service medical records, military service records, and civilian medical records if the veteran has notified the VA of such records to obtain.

12 A. Duty to Assist, But Not to Do All of the Work for You Part of the VA’s duty to assist includes a duty to obtain any records the veteran identifies as supporting the veteran’s claim. This includes civilian medical records from any doctors the veteran states that he or she has seen for treatment of the claimed

• disability. The VA obtains records from civilian doctors on the veteran’s behalf by use of

VA Form 21-4142, which I have attached in the Appendix. However, I would encourage veterans and their representatives not to rely on the VA to do a thorough job in this respect and to either obtain a copy of the claim file to make sure the needed records are included or to obtain the records directly and submit them to the VA, making certain to track and confirm the VA’s receipt of any paperwork submitted. Other evidence to gather might include items such as the veteran’s social security file, if applicable, employment records, medical journal articles or textbooks regarding the claimed condition(s), historical documents that might show the veteran was at a place when a claimed incident occurred, independent expert medical opinion, and lay statements. Such lay statements might include “buddy statements” from those who served with the claimant, employer statements regarding the effect a claimed disability had on the claimant’s job, as well as statements from family and friends who can testify to the claimant’s change in condition before and after service. The VA’s Statement in Support

• f Claim Form 21-4138 is useful for these types of statements.

Note that veterans CAN receive concurrent benefits from social security disability and VA disability. Therefore, if the claimant is already a social security disability recipient based on a condition incurred in service, make certain to get the social security records to support the veteran’s claim. Veterans, however, may not receive concurrent

13 VA disability and VA pension benefits - pension benefits are needs based and the veteran must have served on active duty for at least 90 days and fall below certain income thresholds. A veteran would have to choose the higher of the two benefits but cannot receive both. Likewise, a veteran cannot receive disability compensation and active service pay. However certain veterans may receive full military retirement benefits and VA disability benefits (see 38 C.F.R. § 3.750). B. The Compensation & Pension Exam In almost all VA disability claims, the VA will at some point refer to the claimant to a compensation and pension (C&P) examiner. The exam is not optional, and the claimant’s failure to participate may result in a negative inference being made or a n

• utright denial of the claim. The C&P exam is performed by a VA doctor or contractor,

usually but not always at the VA. The exams are offered if the claim presented by the veteran is sufficient to trigger the VA’s duty to assist. Four factors are considered:

• whether there is competent evidence of a current disability or persistent or

recurrent symptoms of a disability;

• whether there is evidence establishing that an event, injury, or disease occurred

in service, or evidence establishing certain diseases manifesting during an applicable presumption period;

• whether there is an indication that the disability or symptoms may be associated

with the Veteran’s service or with another service-connected disability; and,

• whether there is competent medical evidence of record to make a decision on the

claim. The VA compensation and pension exam must be contemporaneous to the VA’s decision on the claim, must be performed by a medical expert qualified to render an

• pinion on the claimed condition, and that expert must have reviewed the veteran’s

claim file. Often, at least one of these three requirement is missing from the C&P exam

14 and gives the veteran a basis to challenge a denial based on the faulty C&P exam and, at a minimum get the case remanded for an adequate exam. If the veteran can submit evidence from an independent medical expert supporting the claim, the inadequacy of a C&P exam could be the deciding factor in the veteran’s favor on appeal. V. Conclusion The highest aspiration of the VA service connected disability benefits system is to grant the benefits it can, deny only those that it must, and to always resolve all doubt in favor of the veteran. Many of my clients however, think the policy is to “delay, deny, and hope they die.” Their frustrations with the system’s complications and delays are understandable and those who have served us need us to serve them now more than

• ever. I hope you will consider becoming VA accredited and assisting veterans with their

claims.