Veterans Benefits Training PPT for EJW_final

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Representing Veterans

Before the VA on Claims for

Disability Benefits

Presented by Bart Stichman

National Veterans Legal Services Program

Major VA Benefit Programs

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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TOPIC A: Entitlement

Criteria for Service-Connected

Disability Compensation

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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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Status as a “Veteran”

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

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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Status as a “Veteran” (Cont’d)

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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Overview of Entitlement Criteria

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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Entitlement Criteria (Cont’d)

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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Entitlement Criteria (Cont’d)

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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TOPIC B:

Establishing the Appropriate Disability

Rating Percentage

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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 Payments

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

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 for a

Service-Connected Disability

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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Reevaluation of Disability

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 in Evaluation

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

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

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

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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TOPIC C:

VA Claims

Adjudication Process

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Adjudication Process at the VARO

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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Adjudication at the VARO (Cont’d)

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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Adjudication at the VARO (Cont’d)

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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Administrative Appellate Process

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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Administrative

Appellate Process (Cont’d)

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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Administrative

Appellate Process (Cont’d)

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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Administrative

Appellate Process (Cont’d)

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

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 - VA Form 9

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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Substantive Appeal (Cont’d)

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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Board of Veterans’ Appeals

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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TOPIC D:

Judicial Review of a Final

BVA Decision

Denying Benefits

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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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Jurisdictional Requirements

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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Jurisdictional Questions

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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Jurisdictional Questions (Cont’d)

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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Jurisdictional Questions (Cont’d)

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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Jurisdictional Exception

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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Single-Judge or

Panel Disposition (Cont’d)

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 of CAVC Review

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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Scope of CAVC Review (Cont’d)

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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Scope of CAVC Review (Cont’d)

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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Standards of Review

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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Standards of Review (Cont’d)

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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Standards of Review (Cont’d)

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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Standards of Review (Cont’d)

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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Exhaustion of

Administrative Remedies

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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Exhaustion of

Administrative Remedies (Cont’d)

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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Exhaustion of

Administrative Remedies (Cont’d)

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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TOPIC E:

Methods for

Obtaining Benefits After a

Final VA Denial

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Major Options for a Claimant

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

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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Reopened Claim (Cont’d)

“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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Reopened Claim (Cont’d)

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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Motion for Reconsideration

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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Revision of Decision

Based on CUE (Cont’d)

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

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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CUE Case Law

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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Three Kinds of CUE

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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Three Kinds of CUE (Cont’d)

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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Three Kinds of CUE (Cont’d)

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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Success in a CUE Claim

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 of a CUE Claim

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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One Further Restriction

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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TOPIC F: Attorney

Representation of a VA

Claimant

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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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Representative of a

Particular Claimant (Cont’d)

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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Restrictions on

Charging a VA Claimant a Fee

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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What is a VA Claims Folder?

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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Obtaining the VA Claims File

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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How to Review a VA Claims File

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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TOPIC G: General

Advocacy Tips for

Attorneys Practicing Before the VA

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Navigating the VA Claims System

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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Navigating the

VA Claims System (Cont’d)

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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VA Employees

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”

106

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