Presented by Bart Stichman
National Veterans Legal Services Program
Service-Connected Disability Benefits
(“Compensation”)
Service-Connected Death Benefits for qualified survivors of deceased veterans (“DIC”)
(Needs-based) Non-Service-Connected Disability
Pension Benefits for war-time veterans
(Needs-based) Non-Service-Connected Death Pension
Benefits for certain qualified survivors of deceased wartime veterans
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Service-Connected
Disability Compensation
VA makes up to four determinations in deciding a disability compensation claim:
Is the claimant a “veteran”? If yes,
Is veteran entitled to “service connection” for the claimed disability(ies)? If yes,
Degree of the veteran’s service-connected disability and
The effective date of the award of disability compensation
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Definition of Veteran - A “person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable”
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Willful Misconduct :
Disabilities that result from a veteran’s willful misconduct are not compensable
“conscious wrongdoing or known prohibited action ”
Alcohol and Substance Abuse:
Compensation may not be paid for disabilities the result of primary alcohol abuse or substance abuse
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Alcoholism and
Substance Abuse/STDs
Alcoholism/Substance Abuse as Secondary to a
Service-Connected Condition(s):
Compensation payable if abuse-related disabilities are secondary to a service-connected disability
Any disability resulting from that alcoholism or drug abuse, such as cirrhosis of the liver, may also be serviceconnected
Residuals of venereal disease or HIV are not willful misconduct
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Character of Discharge
Discharge or release must have been “under conditions other than ‘dishonorable’”
Honorable Discharge and General Discharge Under
Honorable Conditions → qualifies
Discharge Under Other Than Honorable Conditions
(OTH) → may or may not qualify (VA makes individualized “character of service” determination)
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Veterans are entitled to compensation for disabilities incurred in or aggravated during period of active military, naval, or air service
Note - Service department findings are binding on VA for purposes of establishing service in the U.S. Armed Forces
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Example: A battlefield wound to knee and a knee injured while sliding into second base during a baseball game played during active service may both be service-connected conditions
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Assuming “veteran” status there are three basic entitlement criteria:
Evidence the veteran currently suffers from a disability
Evidence of an incident, injury, or event during the period of the veteran’s military service
Evidence of a link between the current disability and the incident, injury, or event during service
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Three Criteria for Service Connection
First Criterion: Evidence that the veteran currently suffers from a disability
Disability almost always must be diagnosed by a medical professional
Under VA’s duty to assist – lay evidence of vet’s recurrent symptoms may force the VA to provide a free VA medical examination to diagnose the disability
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Three Criteria for
Service Connection (Cont’d)
Second Criterion: Evidence of an event, injury, or disease that occurred during the period of active military service
VA is required to consider lay evidence; no corroborative evidence technically required
Relaxed evidentiary standards for combat veterans
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Three Criteria for
Service Connection (Cont’d)
Third Criterion: A link or nexus between the current disability and an event, injury or disease that occurred during the period of military service
There are five major ways to establish linkage; VA must consider each theory reasonably raised by the evidence of record
VA must make reasonable efforts to assist vet in substantiating the claim
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Five Ways To Establish a
Disability is Service-Connected
Directly: Disability was manifested or diagnosed during military service, or an injury, event or incident in service caused the veteran eventually to suffer from a disability
“Delayed Direct Service Connection”
Chronicity and Continuity
Chronic Conditions - A condition shown in service is determined to be “chronic”
Continuity of Symptomatology
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Five Ways To Establish a
Disability is Service-Connected (Cont’d)
Aggravation: worsening of a condition that preexisted service
Temporary or intermittent flare-ups are not sufficient unless the underlying condition permanently worsened
Presumption of Soundness - Unless the service entrance exam indicates otherwise, the VA presumes the veteran was in sound condition when he or she entered the service
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Five Ways To Establish a
Disability is Service-Connected (Cont’d)
Statutory Presumption:
Chronic Diseases
Tropical Diseases
POWs
Persian Gulf Veterans
Radiation-Exposed Veterans
Exposure to Herbicide Agents (Agent
Orange)
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Five Ways To Establish a
Disability is Service-Connected (Cont’d)
Secondarily: Demonstrating that a condition is proximately the result of, or linked to, a service-connected condition
Ex: Secondary SC may be established for a mental condition caused or aggravated by a SC physical condition
Likewise, secondary SC may be established for a physical condition caused by a SC mental condition
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Five Ways To Establish a
Disability is Service-Connected (Cont’d)
VA Medical Treatment or Vocational
Rehabilitation:
Disability caused by VA medical care or vocational rehabilitation may be treated “as if” it is connected to service
Requires showing of fault or accident
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Establishing the
Appropriate Percentage of Disability
Assignment of Appropriate percentage:
Correct diagnosis and the assignment of the correct “diagnostic code” (DC)
Determining the current symptomatology
Comparing the symptomatology against the appropriate diagnostic code
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Establishing the Appropriate
Percentage of Disability (Cont’d)
General Information:
Percentage designed to reflect the average impairment in earning capacity
≥2 SC disabilities → combined disability rating (percentages are not added arithmetically)
Different disabilities may arise from a single disease entity → separated disability ratings
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Establishing the Appropriate
Percentage of Disability (Cont’d)
General Information:
Percentages are set in increments of 10, but may be zero
Functional loss due to pain and weakness has to be separately considered and rated
One disability may be compensated under multiple diagnostic codes→ separate disability ratings -- if
“none of the symptomatology . . . is duplicative of, or overlapping. . . .”
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Disability compensation is not taxable and is not subject to garnishment or attachment
The level of payments is fixed by statute
The following rates are effective 12/1/2012
10% combined rating pays $129 per month
50% combined rating pays $810 per month
100% combined rating pays $2,816 per month
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Additional Compensation for Dependents if at least
30% disabled for service-connected disabilities
Monthly rates for dependents of veterans rated 100%
Spouse $157
No spouse, one child $105
Spouse and one child $272
Each additional child $78
Dependent parent $126
Child pursuing post-secondary education $252
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Eligibility for Increased or
Special Monthly Compensation
Increased or SMC above 100% amount:
Aid and Attendance
In other situations
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Total Disability Based on
Individual Unemployability (TDIU)
TDIU - 100% rating even though the serviceconnected condition(s) are rated less than
100%
Disabled veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities
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Total Disability Based on
Individual Unemployability (Cont’d)
To qualify:
Unable to engage in a substantially gainful occupation (SGO); and
Veteran has:
One SC disability rated at 60% or more; or
Two or more disabilities, one of which is rated at least
40% and additional service-connected disabilities to bring the combined rating to 70% or more; or
Can by assigned an extraschedular rating under 38 C.F.R.
§ 4.16(b)
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Total Disability Based on
Individual Unemployability (Cont’d)
A SGO provides annual income that exceeds the poverty threshold for one person
Education and occupational history considered
“Marginal employment” should not be considered
SGO
TDIU should be provided to all veterans who are unable to secure and follow an SGO due to service-connected conditions
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Extraschedular Rating
Where a 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”
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VA may choose to reevaluate a serviceconnected condition
VA may increase or decrease the percentage evaluation
If there is no change, the VA will “confirm and continue”
VA will usually schedule a review examination
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Reduction of an established percentage:
VA must demonstrate the SC condition has improved to the point where a lower percentage of disability should be assigned
Possible in some cases to gauge with nonmedical evidence
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Reduction of a Total Schedular Evaluation:
An examination showing “material improvement” under “the ordinary conditions of life” is required
VA must compare the symptomatology which formed the basis for the previous grant with the symptomatology of the most recent or last exam
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Reduction of Grant of IU
VA must demonstrate that “actual employability is established by clear and convincing evidence”
If engaged in SGO, TDIU may not be reduced solely on that basis unless the veteran maintains the occupation for 12 consecutive months
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Rating In Effect for 5 Years or More
May not reduce the rating unless all evidence of record shows sustained improvement
Cannot be reduced on examinations reflecting the results of bed rest
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Rating in Effect for 5 Years (Cont’d)
To reduce a rating in effect for 5 Years:
Must find there has been an improvement
Improvement in the ability to live and work
History of the disability must be reviewed
Reduction must be based upon a thorough current examination
Must find “it reasonably certain that the improvement will be maintained under the ordinary conditions of life”
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The process begins with receipt of a claim
Formal Claim
Informal Claim
Both formal and informal claims must show:
an intent to apply for benefits an identification of the benefits sought a communication in writing
Inferred Claim
Claim not directly articulated by the claimant but reasonably raised by the evidence of record
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ROs are required to notify the claimant of:
Evidence/information necessary to prove the claim
What information/evidence the claimant should provide
What information/evidence VA will attempt to obtain
Claimant has one year from the date of notification to respond with requested information/evidence
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Then the case is referred to an RO rating specialist
The decision is recorded in a VA rating decision
Notification letter to claimant and “Rating
Decision” includes:
A statement of the reasons for the decision
A summary of the evidence considered by the VA
Notice of procedural and appellate rights
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To initiate an appeal:
Claimant or claimant’s authorized rep must file a written notice of disagreement (NOD), which must:
• Express disagreement with a specific determination
• Express desire for appellate review
• Be filed with the RO
• Within one year of the RO decision
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Upon receipt of the NOD, VARO must review the claims file and either:
Allow (i.e., grant) the claim; or
Issue a Statement of the Case (SOC)
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De Novo Review by DRO:
Optional review takes place between the filing of the NOD and VA’s issuance of the
SOC
DRO review must be requested within 60 days after date of VA letter offering DRO review
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DRO may conduct an informal conference or a hearing
DRO may uphold, revise, or reverse, but may
not revise or reverse in a manner adverse to the claimant unless the earlier decision contained clear and unmistakable error
Traditional appellate process proceeds as usual after the DRO decision
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Regional Office Hearings
Veteran can have a hearing before a DRO or other
VA employee
Can be held “at any time”
Hearing officer must “explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant’s position”
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Substantive Appeal
After the SOC claimant must perfect the appeal
File a VA Form 9
VA Form 9 should be filed with the RO that made the decision being appealed
Veteran has 60 days from SOC or the remainder of the one-year period that began with the date of the mailing of the VA letter of denial - whichever is longer
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VA Form 9 should include:
Factual and legal errors in the RO decision
Can raise new theories, expand the issues before the BVA, and present claims for different VA benefits
RO may respond to the VA Form 9 with a rating decision or Supplemental Statement of the Case
(SSOC)
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BVA is the final arbiter
Assigned to a single Board member
Jurisdiction over all questions on claims involving benefits under the laws administered by the VA
No jurisdiction over medical decisions
Case is considered de novo
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Board of Veterans’ Appeals (Cont’d)
A claimant may present new documentary evidence and/or witnesses
BVA must remand to the agency of original jurisdiction if further evidence, clarification of evidence, or correction of a procedural defect is needed
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Board of Veterans’ Appeals (Cont’d)
Appellant may request an IME opinion
Must show “a complex or controversial medical or legal issue involved in the appeal”
Appellant has a right to a hearing:
Before a BVA member sitting in Washington
D.C.
Before a traveling Board member at a RO
A videoconference hearing at a regional VA facility
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Board of Veterans’ Appeals (Cont’d)
Precedent CAVC decisions establishing a rule of law must be followed by the RO/BVA
Also bound to follow substantive manual provisions
All BVA decisions must contain “a written statement of . . . reasons or bases. . . .”
Must mail a copy to the claimant and rep
BVA decisions can be appealed to the CAVC
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Board of Veterans’ Appeals (Cont’d)
Statistical Summary of BVA Dispositions:
48,588 dispositions in FY 2011
Allow/grant in 28.5% of cases
Remanded 44.2% of cases
Denied 24.2% of cases
An additional 3.1% were disposed of through other means
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The U.S. Court of Appeals for Veterans Claims (CAVC)
The Veterans’ Judicial Review Act (VJRA) of
1988 created the U.S. Court of Veterans Appeals
There are now 9 judges on CAVC
www.uscourts.cavc.gov
CAVC has exclusive jurisdiction to review BVA decisions
Only claimants who do not completely prevail at the BVA can appeal
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Two Jurisdictional Requirements
A final BVA decision
A BVA decision remanding a claim to a VA regional office is not a final decision
Timely Notice of Appeal (NOA)
Must be received by the CAVC or postmarked by USPS within 120 days of date on which BVA mails its final decision
Equitable tolling of the 120-day appeal period is potentially available
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Motion for Reconsideration/Vacate
Motion filed at BVA within the 120-day CAVC appeal period
New 120-day CAVC appeal period begins:
The date the BVA receives the claimant’s notice of withdrawal; or
The date the BVA properly sends the claimant notice of denial; or
The date the BVA properly sends notice of its decision to deny complete relief after having granted the claimant’s motion
No need to file a protective NOA with CAVC
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What happens when an NOA is filed at the
CAVC and then a Motion for Reconsideration is filed at the BVA?
BVA must obtain the Court’s permission to vacate decision
Court will not dismiss the appeal if the NOA filed prior to the motion for reconsideration/vacate
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Two Other Scenarios:
If NOA and reconsideration/vacate filed simultaneously, jurisdiction will remain with the
Board
If the motion for reconsideration is postmarked within the 120-day appeal period to the CAVC, the claimant will be able to receive Court review of the
BVA appellate decision
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Petition for Extraordinary Relief in the
Nature of Mandamus
The All Writs Act
CAVC has jurisdiction to issue an extraordinary writ
(writ of mandamus) to VA officials
Can compel VA action
Based upon potential jurisdiction
Petitioner must demonstrate: (1) a clear and indisputable right to a writ and (2) the lack of alternative means to obtain the relief sought
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Single-Judge or Panel Disposition?
Single-Judge Disposition
Single-judge decision issued in > 90% of all contested appeals
Single-judge decisions are not precedential, not citable and not published in Vet. App. reporter
Standards used by screening judge to decide whether to decide by single-judge:
Case is of relative simplicity and:
Does not establish a new rule of law
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Factors cont’d:
Does not alter, modify, criticize, or clarify an existing rule of law
Does not apply an established rule of law to a novel fact situation
Does not constitute the only recent, binding precedent on a particular point of law within the power of the
Court to decide
Does not involve a legal issue of continuing public interest; and
The outcome is not reasonably debatable
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Scope is based upon Administrative
Procedure Act, with certain exceptions
CAVC review is based exclusively on the record of proceedings that was before the
Secretary and the BVA
Includes “relevant” documents within the
Secretary’s control prior to the BVA decision
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Under 38 U.S.C. § 7261(a), CAVC can:
Decide all relevant questions of law, interpret constitutional, statutory, and regulatory provisions
Determine the meaning or applicability of the terms of an action of the Secretary
Compel action of the Secretary unlawfully withheld or unreasonably delayed
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38 U.S.C. § 7261(a) Cont’d:
Hold unlawful and set aside decisions of the BVA found to be:
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law
contrary to constitutional right, power, privilege, or immunity
in excess of statutory authority, or limitations, or in violation of a statutory right
without observance of procedure required by law
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Standard of Review for Findings of Fact:
Court can hold unlawful, set aside, or reverse factual finding if it is “clearly erroneous”
CE = “when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed”
“Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be clearly erroneous”
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Standard of Review for Issues of Law:
De Novo Review of
The proper interpretation of a statute or regulation
Whether appellant would be prejudiced by the
BVA deciding an issue not first decided by the RO
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Standard of Review for Application of Law to
Facts:
Arbitrary/capricious
Examples
A challenge to the VA’s selection of the appropriate diagnostic code for rating
Whether BVA erred in determining that a prior final agency decision did not contain clear and unmistakable error (CUE)
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CAVC must review the record of proceedings below and take due account of:
VA’s application of the benefit-of-the-doubt rule
Rule of prejudicial error
CAVC may not review or modify the VA schedule of ratings for disabilities
CAVC may review VA regulations and precedential opinions of the VA General
Counsel
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Applicability of the doctrine to CAVC review:
If the claimant never raised or discussed an argument/issue while the claim was pending before VA, the Secretary may argue that the
Court should not consider the issue
Will the Court hear the claimant arguments raised for first time at CAVC level?
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Courts have established two rules that are favorable to claimants:
BVA is required to address all legal theories reasonably raised by the evidence even though the claimant did not argue these legal theories
TDIU automatically considered if
Claimant has a disability rating that meets the minimum schedular criteria for assignment of a TDIU rating and
Evidence under VA control that the veteran is unemployable due to service-connected disabilities
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CAVC has jurisdiction to consider any issue the claimant raises for the first time
Federal Circuit ruled that this does not mean it
must consider new issues
But the Supreme Court ruled in a latter SSA case:
Claimant is not required to raise an issue
Can raise the new issue for the first time in federal court and the court must consider it.
CAVC is applying issue exhaustion principles in a manner favorable to claimants
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Major Options:
Reopened claim at the RO
CUE motion at the RO or BVA
Filing a Notice of Appeal with the CAVC
Filing a Motion for Reconsideration with the BVA
Key Factor - “Effective date” of benefits
Date from which benefits will be paid
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Reopened Claim – Two Steps
STEP ONE: Has the claimant submitted
“new and material evidence”?
“new” - existing evidence not previously submitted to agency decisionmakers
“material” - if it, by itself or when considered with previous evidence of record, relates to at least one of the unproven facts necessary to substantiate the claim
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“New and material” evidence does not need to relate to every previously unproven element of a claim
VA must determine whether the new evidence, the previous evidence of record, and the additional evidence that future VA assistance could reasonably be expected to provide, raises a reasonable possibility of substantiating the claim
VA must presume the credibility of the newly submitted evidence
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STEP TWO: De Novo Review
VA “must evaluate the merits of the veteran’s claim in light of all evidence, both old and new.”
There is no time limit within which a claim to reopen must be filed and there is no limit on the number of claims to reopen a claimant may file
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The Following are NOT Reopened Claims
Claims for increased ratings
Pension claims for P & T disability ratings
TDIU claims
Service connection for the POW presumptive diseases
Claims filed after a change in the substantive criteria for entitlement to a benefit
Claim based upon a different factual basis or a separate and distinctly diagnosed disease or injury than a prior claim
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May move for reconsideration at anytime
Motion must be:
In writing
Filed with the BVA Chairman and include
the veteran’s name the VA file number the date of the Board decision to be reconsidered the alleged obvious error of fact or law or other appropriate basis for reconsideration
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Motion for Reconsideration (Cont’d)
Chairman may grant reconsideration:
Upon an allegation of obvious error of fact or law
Upon discovery of new and material evidence in the form of relevant records or reports of the service department
Upon an allegation that an allowance of benefits has been materially influenced by false or fraudulent evidence
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Motion for Reconsideration (Cont’d)
If the Chairman orders reconsideration:
BVA decision is vacated
Reviewed by a reconsideration panel
Decides the case de novo
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Revision of Decision Based on CUE
A successful CUE Claim “has the same effect as if the decision had been made on the date of the prior decision”
File at any time after decision becomes final
If CUE is present in a VARO decision, each CUE theory must be presented to and adjudicated by the RO in the first instance
If CUE is present in a BVA decision, file CUE motion with the BVA in the first instance
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Final BVA decisions are subject to CUE
No time limit to file
BVA’s disposition of the CUE motion is subject to CAVC review
CUE must be based on the record that was before the adjudicator at the time of original decision making
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CUE pleading requirements
Clearly and specifically allege the error or errors of fact or law
The legal or factual basis for such allegations
Why the result would have been manifestly different but for the alleged error
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Benefit-of-the-doubt rule does not apply
At the BVA, only one opportunity to raise an allegation of CUE challenging a RO or BVA decision on a particular claim
CUE does not exist merely because there has been a favorable change in VA’s or court’s interpretation of a statute or regulation after
RO or BVA issued decision being challenged
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CUE in a Finding of Fact:
Claimant must assert more than a disagreement as to how the facts were weighed or evaluated
All of the evidence in the record as it existed at the time of the challenged adjudication must support the conclusion that the factual finding is erroneous
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CUE in a Conclusion of Law:
Must show that the relevant “statutory or regulatory provisions extant at the time were incorrectly applied”
A breach of the duty to assist cannot be a basis for a CUE motion
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CUE based on VA failure to sympathetically review the record to determine all claims reasonably raised by the record:
File a CUE claim challenging the RO decision that should have, but failed to infer and decide the claim for benefits for a particular disability
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Once CUE is established, the prior decision is
“revised to conform to what the decision should have been”
VA then has a duty to assist prior to assigning a disability evaluation for the relevant retroactive period
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CAVC Review:
Reviews Board decisions on CUE under arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law standard
Certain aspects of a CUE decision receive de novo review
whether a claimant has presented a valid CUE allegation
whether a law or regulation was not applied or was applied incorrectly
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A CUE claim cannot be brought against a final, unappealed RO decision where the BVA has subsequently reopened the claim, considered it
de novo, and denied the benefits
In this case the CUE claim must be lodged against the later BVA decision
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Admission of Attorneys to
Represent VA Claimants before the VA
Two Steps
STEP 1: Complete and send VA Form 21a to the
Office of the VA General Counsel (VAGC). When
VAGC responds with initial accreditation letter → you may begin to assist a claimant on a VA claim
STEP 2 TO CONTINUE ACCREDITATION:
Complete three hours of approved CLE within the one-year period and then an additional three hours for every subsequent two-year period
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To be Recognized by VA as the
Representative of a Particular Claimant
Complete, sign, and file a POA form (VA Form
21-22a)
May not designate a law firm as the representative
POA stays in effect until specifically revoked
Generally only one representative is authorized
Newest POA “constitute[s] a revocation” of old
POA
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Split Representation
Scope of the advocate’s representation may be restricted
If POA not limited the VA will consider the advocate to be the representative on all of the
VA claims
Use VA Form 21-22a to limit the scope
May cause some confusion at the VARO
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Preparation of and filing a claim:
No fee may be charged
If an NOD is filed after June 20, 2007:
Attorney may charge a reasonable fee
Post-6/20/07 NOD required to charge fees for claim to reopen or claim for increase in rating
Fees may be charged to prepare a CUE claim; an
NOD is not a prerequisite
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Once a veterans files a claim, the VA creates a
“claims folder” for the veteran
All submitted and VA-created materials related to
ANY of the veteran’s claims for benefits are included in the veteran’s (one and only) claims folder
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Claimants are entitled to one copy of their claims file at no charge
Claimant and/or advocate is able to review the claims folder at the RO
Best way: certify-mail a FOIA request to RO for copy of all docs in C-file w/copy of VA
Form 21-22a or Privacy Act waiver
Pursuant to FOIA, the VA must determine within 20 business days of receiving the request whether it will provide a copy
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Obtaining the VA Claims File (Cont’d)
Pursuant to FOIA, the VA must respond within 20 business days of receiving the request
Advocate should treat a non-response within time period as a denial and appeal
RO’s refusal to provide a copy of a claims file by certified mail to the VA
Office of General Counsel in DC
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Preliminary advice
Keeping track of relevant information
Date-of-receipt stamps
Initial review
Read the most recent decision
Check basic entitlement
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How to Review a
VA Claims File (Cont’d)
Digging into the C file
DD Form 214
Claims for benefits
Lay statements
Rating decisions, narrative, rating codes
Notice of decision
Appellate issues, Notice of Disagreement
SOC and SSOCs
Substantive appeal, Transcript of hearing
BVA decision
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How to Review a
VA Claims File (Cont’d)
Second review
Service Medical Records (SMRs)
Entrance examination
Report of medical history
Clinical records
Military medical reports
Discharge examination
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How to Review a
VA Claims File (Cont’d)
Medical Records – In General
Medical abbreviations and terminology
“Impression”
“Rule out” – (R/O)
Handwriting issues
Post-Service Medical Records
VA Examination reports and QTC examinations
VA outpatient (OPT) records
VA Medical Center Reports (VAMC)
Private Medical Reports
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VA work credits
Bias against lawyers
Instructing VA to send correspondence only to you
Easy adjudications
Pressure to produce by VA managers
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Institutional bias against certain types of claims
Alcohol and drug use
PTSD claims
TDIU claims
Claims for secondary service connection
Claims for delayed direct service connection
Evaluation of back conditions and mental conditions
Where lay evidence is used to support a factual conclusion
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How to Interact with VA Employees
The last two numbers in the veteran’s claim number
Decision Review Officers (DROs) - the very informal VA regional office (RO) de novo hearing
Once your practice is established, if possible, ask for a meeting with the “Service Center Manager”
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