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

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 1 U.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. 1

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 of 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 or 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 2

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 3

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 or 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 4

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 orange 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 5