Welcome to the 2012 Post Service Officer’s Seminar This is the fourth annual training seminar that I have conducted since I have arrived in Illinois. The first concentrated on the basics of Compensation. The second concentrated on the basics of Pension. The third concentrated on the VA Medical programs. Along the way we have also discussed the duties of the Post Service Officer in assisting veterans. Today we will review the duties of the Post Service Officer and will then build on what we previously learned about the basics of VA Compensation. Topics for today: • Review of the Role of VFW Post Service Officer • The Basic VA Claim Process • The Fully Developed Claim Process • Presumptive Disabilities for Compensation Benefits • The VA Appeal Process Duties Responsibilities Authority Of the VFW Post Service Officer The VFW National Veterans Service Program (NVS) is supervised by the National Veterans Service Advisory Committee which performs its duties under the supervision of the National Council of Administration. The National Veterans Service Advisory Committee establishes the NVS Policies and Procedures Manual which dictates the rules under which all Department and Post Service Officer perform their duties. The Post Service Officer must be a VFW Post member in good standing. Is an Officer of the Post, appointed by the Post Commander. Unless restricted by Post Bylaws many also serve the Post in other elected or appointed positions. The duties & responsibilities of the Post Service Officer are generally defined in the VFW Manual of Procedure, Section 218 (a) (12) 1. Shall assist members of the Post, their widows, and orphans. 2. Shall assist other worthy cases brought to their attention. 3. Shall perform their duties in accordance with the instructions contained in the VFW Guide for Service Officers. 4. Shall perform their duties under the general supervision of the Department Service Officer. The VFW Guide for Post Service Officers further provides that the Post Service Officer: 1. Should have access to the latest copy of the VFW Guide for Post Service Officers. 2. Must route claims and supporting evidence and all inquires to the Department Service Officer. 3. Should have an adequate supply of current VA Forms (either by hard copy or VA website). 4. Should keep members informed of veterans’ entitlements and benefits offered and administered by local, state and federal agencies. 5. Is not allowed to request or accept remuneration for their services. 6. Shall not refuse to assist any claimant unless it is clear that the claim is fraudulent (in which case the Department Service Officer will be the final authority as to whether the VFW will provide representation). 7. Shall not refuse to assist any claimant because they do not feel the claimant is eligible for the benefit sought. 8. Shall forward without delay all applications to the Department Service Officer. (we encourage Post Service Officers to utilize local professional contacts such as IDVA or VAC offices for claim development assistance) 9. Shall not keep original documents provided to them but are to transmit such documents to the Department Service Officer. (may maintain records of claims prepared [activity] and submitted to the DSO but may not maintain claims files) Note: Public Law 93-579 restricts the release of confidential information to parties other than the claimant. An accredited representative of a Veterans Service Organization may only release information necessary for development of a specific claim to a local Post Service Officer, if authorized by the claimant in writing by either letter or form created for that purpose. 10. Shall not make direct contact with any office or representative of the Department of Veterans Affairs concerning a pending benefit claim or as a request for personal information regarding a claimant except in the case of an emergent ill veteran to a VA Medical Center in which case the Department Service Officer will be informed when time permits. 11. Must attend all training conducted within the Department in service work by the Department Service Officer, especially the annual Department Post Service Officer School and any service officer training conducted at District meetings or by the District Service Officer. Any VFW member may offer their assistance to a potential claimant. However, only an appointed Post Service Officer may present themselves as such to either a claimant or government department or agency. Any VFW member offering their assistance to a claimant must accept the responsibility to act under the same rules as an appointed Post Service Officer. In 2011, a VFW Post Service Officer in Maine filed a complaint to the VA District Counsel through his Department Service Officer that a private attorney properly accredited by the VA was acting unethically in the preparation of VA claims for residents of a nursing home at which the Post SO volunteered. The attorney filed a counter complaint that the Post SO, acting as a volunteer, violated VA regulations, in as much as he was not “accredited” by the VA, but was “advising and assisting” residents of the nursing home in VA benefit claims. He further claimed that the National VFW directive that Post SO’s work under the “general supervision” of the Department Service Officer did not offer adequate control of qualifications and conduct. After reviewing the complaints and the policies of the VSO’s relating to the activities of Post Service Officers the VA General Counsel agreed with the attorney! In an agreement reached between the VA General Counsel and the VSO’s in July 2011 the directives to Post Service Officers were revised. Post SO’s may not “advise” potential clients on VA benefits. They may assist clients in completing VA forms by acting solely as “recorders” of information. They may not “advise” on the legal criteria for eligibility for benefits but may inform and provide information on that criteria such as printed material for use and interpretation by the client. As a result of this agreement with the VA General Counsel the VFW NVS Policy and Procedure Manual was amended by the NVS Advisory Committee and the National Council of Administration at the National Convention in August 2011. As it relates to the Post Service Officer the Manual now states in paragraph 7 D: “When acting as a recorder, the PSO is simply transcribing information provided by the claimant. At no time should the PSO make suggestions on how to frame information to make it appear more favorable or less harmful to the claimant.” Paragraph 7 E: “Under no circumstances should a PSO counsel a claimant on their individual claim. While a PSO provides information concerning various government benefit programs, he/she should not offer any guidance or opinion as to the individual claim itself.” “General statements about the types of evidence necessary to support a claim can be described; however, a PSO must not discuss the nature or merits of any particular claim.” So, what do we expect from a Post Service Officer? We expect that he has a desire to assist his fellow veterans without prejudice. We expect that he will establish a working relationship with other key Post and Auxiliary officers. • Hospital Chairman • Chaplain • Military Assistance Service Chairman We expect that he will establish a working relationship with key community service providers and agencies such as: • • • • • • Churches Homeless Shelters Food Pantries Funeral Directors State & County Social Workers Hospital Social Workers We expect that he will establish a working relationship with key members of the veteran service network in his area: • County Veterans Assistant Commission • Illinois Department of Veterans Affairs • Other Veterans Service Organizations • Family Support Organizations We expect that he will become familiar with basic eligibility requirements for VA benefits to include: • • • • • • Medical Care Disability Compensation Disability Pension Survivor DIC and Pension Education Benefits Burial Benefits We expect that he will acquaint himself with basic VA forms required to apply for VA benefits and the procedures for filing claims. We do not normally train Post Service Officers to prepare claims forms. Although Post Service Officers may prepare claims for submission to the Department Service Office within their level of expertise we encourage them to establish a good working relationship with the local professionals in their area such as IDVA and VAC offices. Standard VA Forms for Post Service Officers: 21-22 Appointment of Accredited Representative 21-526 Application for Compensation or Pension 21-526b Application to Reopen Compensation 21-526EZ Fully Developed Compensation Claim 21-527 Application to Reopen Pension 21-534 Application for DIC or Death Pension 21-686c Report of Dependents Status 21-4138 Statement in Support of Claim 21-4142 Authorization to Release Information 21-8940 Application for Individual Unemployability 20-572 Change of Address 10-10EZ Application for Medical Benefits Post Service Officers are not insured against improper or inadequate advice subjecting themselves to personal liability if they give improper advice regarding benefit eligibility. Know your Department Service Office contact information. Know your local assistance resources for referrals. Be prepared to provide assistance of all kinds. Accreditation: The US Department of Veterans Affairs accredits persons to represent claimants in the presentation of claims. Persons affiliated with (employed by) Veterans Service Organizations must be certified (verification of training) to the VA General Counsel by that VSO for accreditation to be granted. The VFW does not “certify” that any VFW member or any other person involved in assisting veterans has been trained or is authorized to provide services to veterans under the authority or supervision of the VFW except as is required to “certify” that a qualified person has been properly trained for the purposes of VA accreditation. It is the policy of the VFW National Veterans Service that only full time employees of the Department VFW Service Office who are endorsed by the State Commander will be certified by NVS to VA General Counsel for accreditation by the US Department of Veterans Affairs under the VFW banner. The only exception to this policy are full time employees of local (county) or state entities who provide services to veterans and are certified by the Department Service Officer that they have received proper annual training to maintain accreditation. Recommendations made by the State Service Officer must be endorsed by the State Commander and the National Director of Veterans Service. All Service Officers and other representatives accredited by the VA under the VFW banner are insured for errors and omissions by the national VFW organization. QUESTIONS? The VA Claims Process Or, “How I learned to hate the government!” VA BENEFITS? • Compensation – Monetary benefit paid for disability proven to be the result of military service • Pension – Monetary benefit paid for disability not the result of military service (total disability, wartime service & income based) THE BEGINNING… • VA Form 21-526 – Once in a lifetime form, required for original compensation or pension claim • VA Form 21-527 – Claim for Pension at some time AFTER original 21-526 • VA Form 21-534 – Once in a lifetime form, required for original death benefit claim TYPES OF COMPENSATION CLAIMS? • Original claim • Reopened - Increased rating of recognized service connected disability • Reopened – Disability previously denied • Amended–New disability • Amended-New disability secondary to existing service connected disability EVIDENCE? • DD214 or equivalent – Original or certified copy • Rational for claim on proper form • Medical evidence supporting rational • Dependency documents as indicated COMPENSATION CLAIM RATIONAL (METHODS OF SERVICE CONNECTION) • Direct • Presumptive • Secondary • Aggravated • Result of negligent VA Medical Care MEDICAL EVIDENCE • Type of Medical evidence required by VA is dictated by the RATIONAL for the claim • In all cases - Evidence of Current Disability • Service Medical Records (SMRs or STRs) • Evidence of Continuity or NEXUS • Evidence may be VA or private treatment • Depending on condition, lay statement may suffice to establish current disability THE BEGINNING OF THE PROCESS • Proper claim submitted to VA Regional Office • Direct mail to VA or thru VSO or electronic • Mail is logged into the VFW Service Office • Reviewed for completeness and accuracy • Service Officer creates three submission letters, two of which accompany the claim(1 for VA, 1 stamped & returned to VFW) • The claim is submitted to the VARO via inner office mail system REGIONAL OFFICE MAILROOM • VARO employee date stamps the evidence which verifies receipt by the VARO (date stamp establishes date of claim) (effective date of award is based on DOC) • Mailroom returns the VFW copy of the submission letter to the Service Office • Claim is then forwarded to the Triage Team or to the proper Regional Office OTHER VA REGIONAL OFFICES • Live Pension claims to Milwaukee • Dual Pension & Compensation claims remain at Chicago RO • Death Pension claims to Milwaukee • DIC claims to Milwaukee • Insurance claims to Philadelphia • Education claims to St Louis • Veteran lives in another state MAIL TO TRIAGE TEAM • C’est the claim (enters it in the VA computer system for control purposes- DATE OF CLAIM & TYPE OF CLAIM) • Create or request transfer for Claims Folder • Forward established claim to the processing team VSR for pre-determination development • Triage may process simple requests such change of address, direct deposit changes. PRE-DETERMINATION DEVELOPMENT BY VSR • Review the claim and all supporting documentation • Identify issues (disabilities) claimed • If this is an original claim, request the service medical records (SMR’s) and/or personnel file and determine what additional evidence is required PRE-D VSR CONT: • If this is reopened claim for increase verify what additional evidence is required • If this is a reopened claim for a new condition secondary to a SC disability verify what evidence is required • If this is a reopened claim on prior denied disability verify previous decision and what new & material evidence is required PRE-D VSR CONT: • If this is an amended claim for a new issue verify what evidence is required • Establish MAPD – evidence tracking • Issue Duty to Assist Letter (DTA) with VCAA Notice • Request evidence identified in the claim (greatest delay in the claim process) DTA LETTER FROM VSR • Notifies claimant of issues as interpreted from the claim • Notifies claimant of additional evidence required • Generally describes what will happen next • May identify additional evidence being requested by VA • May provide Disability Benefit Questionnaire (DBQ – disability specific) PRE-D VSR CONT: • VARO will wait 60 days for a response to the DTA letter. Attached to the DTA letter is a response form, VCAA Notice, which will allow the veteran to waive the 60 day wait if there is no additional evidence to submit. • Accredited representative may submit a statement to the VARO on behalf of the veteran in response to DTA letter. PRE-D VSR CONT: • After the DTA requirement has been met, the VA may request the veteran be examined by a VA physician IF it is determined that the claim is likely to be proven by the identified evidence. VA EXAMS Exam will not be ordered: • If an exam will not prove the claim. • If there is sufficient medical evidence of record, private or VA, to rate the claim. • If an adequate Disability Benefit Questionnaire has been submitted. VA EXAMS CONT: • When an exam is requested, the claims folder should be sent to the VAMC for the examiner to review. There are some cases in which the file is not required by the examiner. • The VSR-RVSR team identifies the issues to be examined and any medical opinions required. VA EXAMS CONT: • If an examination is requested, it is required for the claimant to attend. • The RO orders the exam at the nearest VAMC capable of completing the exam. • The VAMC C&P unit schedules the exam for the first available time with an examiner certified to complete the exam as ordered by the RO. VA EXAMS CONT: • If the veteran requests the exam to be rescheduled the C&P unit may do so depending on the timing of the request. • If the timing of the request to reschedule would not allow the exam to be completed within 30 days of the date of order from the RO, OR the request is for a change of location, the request will be denied by the VAMC and the request to reschedule must be sent to the RO. VA EXAMS CONT: • If the veteran fails to appear for examination without notice or request to be rescheduled the claim will be denied. • Address changes, work schedules, short notices from VAMC and bad attitudes are the most common reasons for failure to appear. VA EXAMS CONT: • Examinations begin as soon as the veteran steps into the C&P clinic. The examiner may observe the veteran while in the waiting room. • The examination will only include those conditions for which the RO has requested the examination. VA EXAMS CONT: • Examinations are conducted using a disability exam worksheet which specifies what must be covered in the examination. • After the examination is completed, the physician has 60 days to complete his report. VA EXAMS CONT: • The VAMC will return the claims folder (c-file) to the RO. The VSR will hold the c-file in the “AWAITING EVIDENCE BIN” to await release of the report. • In order for the exam report to be released to the RO, the VAMC Chief of C&P service must review and sign off on the report that it covers all requested exams. VA EXAMS CONT: The VA examiner may not be a doctor. The Chief of Service at the VAMC may assign any medical professional deemed qualified to conduct the requested examination. The examiner may be: • Doctor, MD or DO • Psychologist • Nurse • Physician Assistant VA C&P examinations are not treatment events. It is a report of medical facts as they exist at the time of the exam. History may be obtained by the examiner and is pertinent only to the extent that it gives the examiner an understanding of how the current condition has changed over time. (nature of original injury, surgeries, secondary injuries, etc) It is inappropriate for a VA C&P examination to be conducted by the veteran’s treatment provider. It is a confliction of interest. It is inappropriate for an examiner in the context of the exam to comment on the propriety of treatment or to recommend a course of treatment. It is inappropriate for an examiner to offer advice on the pursuit of a claim, suggest the time frame of a future decision, suggest whether a decision will be favorable, or suggest what disability evaluation may be assigned by the Rating Board. BACK TO PRE-DETERMINATION VSR • The Pre-D VSR will print out the exam report once it has been released by VAMC. • The exam will be reviewed to ensure that all necessary exam elements were covered. • The VSR will verify that all legal procedures were completed and will then forward the claim to the RVSR. THE RATING BOARD - RVSR • The claim will be assigned to a rating specialist who handles that particular “digit”. The terminal digits are the last two numbers in the claim number. • In Chicago we have five “Rating Teams” with 20 digits each RVSR CONT: • Claims are primarily worked by the rating specialist (RVSR) in date of claim order. Certain circumstances may place a greater priority on a particular case such as terminal illness, homelessness, financial hardship, POW claims, etc. • Financial hardship must be demonstrated by supporting documentation such as eviction notices, utility shut-offs, etc. RVSR CONT: • The RVSR will review the evidence and adjudicate the claim. • Some cases may require additional evidence or opinions to be obtained. • Depending upon the experience of the rater or type of claim, two RVSRs may be required to sign the claim. RVSR CONT: • RVSRs are not physicians. In regards to medical findings, the RVSR will rely upon the VA examination and private physician statements and records. He cannot render a medical opinion. • The RVSR makes a decision based the legal and medical merits of the evidence. • Once a rating decision is made, the claim is placed on the “Service Review Table” SERVICE REVIEW TABLE • The rating decision is placed on the VSO table for a 72 hour period to allow the service officer to review the decision prior to promulgation. (In Chicago 24 hours.) • The VSO Service Officer can review the rating and evidence used and determine if, in his opinion, the decision is proper. SERVICE REVIEW TABLE CONT: • If the Service Officer disagrees or identifies an error, he can, in most cases, speak with the RVSR for clarification. Depending upon the rater and the issue, a change in the decision may be made. The SO may not appeal a decision at this time. • After his review of the decision, the Service Officer “signs off” on the rating and the c-file is placed on a post decision review desk. • This “sign off” by the Service Officer is not an acceptance of the decision but is an acknowledgement of having reviewed the decision. SERVICE REVIEW TABLE CONT: • After 72 hours (24 hours in Chicago) if the rating has not been reviewed by a SO, the VSR will take the c-file and continue on with the claims process without VSO review and without notification to the VSO. Note: We do have an on-going issue with some RVSRs who do not place decisions for review by VSO and some coaches who pull decisions without waiting 24 hours. POST DETERMINATION VSR • The Post-D VSR is responsible for the promulgation of the rating decision. • Promulgation is the updating of the VA computer system and creating the written notification to the claimant of the decision. POST DETERMINATION VSR CONT: • The Post VSR will update the VA computer system with the results of the rating decision. • If the decision was favorable, the VSR computer update will include the rating changes and the addition of dependents to the veteran’s award as appropriate. POST DETERMINATION VSR CONT. • Award actions must be signed off on by an authorizer who reviews the award for accuracy. • Once the authorizer reviews and signs off on the award action, the c-file is returned to the VSR. POST DETERMINATION VSR CONT: • If a grant of benefits will result in a large retro benefit (over $25,000), the claim must be submitted to the Director of the RO or his designated representative for approval before release. (This approval is part of a checks and balance system to prevent any fraud by VA employees.) POST DETERMINATION VSR CONT: • The VSR will finalize the award action upon return from the authorizer. • The VSR releases the notice of decision to the claimant. A copy of the decision will be provided to the VSO. • Depending upon the issues granted, additional information will be provided or requested with this notification. POST DETERMINATION VSR CONT: • In general, payment of an award occurs 5-8 working days after the decision is released by the VSR. • Direct Deposit may be initiated at any time by providing the necessary banking information (name of institution, routing number, account number) (DD will become mandatory) POST DETERMINATION VSR CONT: If the RVSR has ordered development for any additional issues that have come up either from the veteran or as part of the claim decision the file will be referred to Development VSR for the required action and the process starts all over again. ELAPSED PROCESSING TIME • Currently in Chicago = Average 24 months • VA target in 2015 = 125 days QUESTIONS? Fully Developed Claims (FDC) The “AVERAGE” claim processing time at the Chicago Regional Office is over 300 days. The “TYPICAL” claim processing time nears 24 to 28 months. What can we do to influence the time it takes to process a “typical” claim? We can consider the “Fully Developed Claim” Process! In 2009 (announced in December 2008) the VA introduced a pilot project to test the FDC program in 10 VA Regional Offices to evaluate the impact it would have on the pending claim backlog nationwide. The Chicago RO was one of these. In June 2010 the VA implemented the FDC program nationwide. (PR 6-15-10 and FL 10-22) The FDC program is a formalization of what we have all done informally as part of our daily activity all along: Bring to the VA team a complete claim that may be processed immediately with little or no development. Each RO Service Center Manager has the ability to establish the FDC process within their own management formats but must follow the Department’s basic guidelines. Initially at the Chicago RO FDCs were processed by a separate unit. In January 2012 this unit was dissolved and FDCs are now processed as “priority” within each team. The program uses two new forms: VA Form 21-526EZ for compensation claims, original or reopening VA Form 21-527EZ for pension claims, original or reopening By definition, a “Fully Developed Claim” is submitted with ALL of the evidence which would be required to prove the claim, EXCEPT FEDERAL RECORDS such as service medical records and VA treatment records. An FDC must be submitted using the proper EZ form which must be complete and must include a certification statement, which is part of the new claim form, that the submitted claim is complete for all non-federal evidence required. The purpose of FDC certification is to allow the VA to process the claim without further “routine” development and without issuing a “Duty to Assist” letter and without requiring a VCAA Notice Response. A FDC may be: A new / original claim. A claim for a new disability. A claim for a new disability secondary to an existing service connected disability. A claim for increased evaluation of an existing service connected disability. FDC Criteria (evidence): All relevant private medical treatment records for the claimed disabilities. Identification of any Federal (Military or VA) treatment records. For current National Guard and Reserve members, ALL service treatment records and personnel records in the custody of the Veteran’s unit. The veteran MUST report for any VA medical examinations as requested. If the claim is NEW, the veteran: Should submit certified copies of all DD214s. Must submit a completed VA Form 21-686c if claiming dependents. A FDC will be kicked out & VA will process the claim traditionally IF: All identified private treatment records are not submitted with the claim. The VA determines that additional supporting documents or records are required. IF: The veteran submits any additional supporting information or documentation after the submission of the FDC. The veteran fails to appear for an ordered VA examination. If the VA kicks a FDC out of the program it will be processed traditionally based on original date of claim. This administrative processing decision by the VA is not appealable. The VA will notify the veteran that the FDC has been kicked out and the reason it does not qualify for the program. A veteran may not mix an FDC with a separate claim for other disabilities using either a 21-526 or 21-526b, or may not file an FDC if there is a separate pending claim (or pending appeal on an issue related to the new issue being claimed). Likewise, if the veteran files a new claim after filing an FDC, the FDC will be kicked out and both claims will be processed in the traditional method unless the FDC has been advanced to Ready for Decision status. A veteran may not use the FDC process to reopen a claim for a previously denied disability unless the new claim is based on newly discovered federal records or on a change in law such as a newly added presumptive disability. A New and Material evidence claim to reopen will probably not meet the FDC evidence criteria. Due to the FDC evidence limitations an FDC for a non presumptive disability which had it’s origin in service filed more than 12 months after discharge is not impossible but may be difficult because of the requirement for medical evidence of continuity of treatment. The veteran may file an “informal FDC” by submitting “only” the following statement: “I intend to apply for compensation (or pension) benefits under the FDC Program. This statement is submitted to preserve my effective date for entitlement to benefits. I am in the process of assembling my claim package for submission.” If the veteran uses the informal FDC option he has one year within which to submit a VA Form 21-526EZ which MUST be complete at time of submission. If an incomplete claim is submitted within the one year it will be processed traditionally and the date of the informal claim statement establishes the date of claim. If the informal claim is an original claim it should include a certified copy of the separation document, DD214 or equivalent, so that a claims folder may be established. Because of the FDC limitations the veteran considering filing a new claim should carefully consider the benefits of filing a FDC if the full criteria for FDC can be met. This may demand delaying the filing of a formal FDC in order to obtain the required evidence. The discussion and preparation of an FDC with the client requires discipline in evaluating the evidence and the issues. Submitting the claim as an FDC only to have to have it kicked out to be processed traditionally will be unnecessarily frustrating to the veteran and uses valuable VA resources. The sole purpose of the FDC option is to reduce processing time! We have had great success with fully documented claims using the FDC option with claims being resolved within 60 to 180 days (most under 120) at the Chicago Regional Office. This has been a cooperative effort between field offices of IDVA and VACs, VSOs, VA VSRs, RVSRs and management. QUESTIONS? Presumptive Disability Criteria In all cases Service Connection for a disability requires three components be proven to exist: 1. Evidence of current disability 2. An in service event 3. Causal link (nexus) between 1 & 2 Methods of Service Connection: Direct Presumption Secondary Aggravation Of a Pre-existing condition Of a Non SC condition Other factors Result of VA Treatment Result of Voc Rehab PRESUMPTION: A veteran may be presumed to have contracted a listed chronic or tropical disease within the dates of his/her military service. Due to the different natures of certain diseases, there may be different presumptive periods in which a disease must be found to exist to a compensable degree for the purpose of service connection. 38CFR 3.307 (a)(1) Service. The veteran must have served 90 days or more during a war period or after December 31, 1946. The requirement of 90 days' service means active, continuous service within or extending into or beyond a war period, or which began before and extended beyond December 31, 1946, or began after that date. Any period of service is sufficient for the purpose of establishing the presumptive service connection of a specified disease under the conditions listed in §3.309(c)(POW) and (e)(herbicide). Presumptive Service Connection 38CFR 3.307 (a), 3.309, 3.311, 3.317, 3.318 Chronic Disease Tropical Disease Former Prisoner of War Herbicide Exposure Radiation Exposure Persian Gulf War – Undiagnosed illness CHRONIC DISEASES PRESUMPTIVE CHRONIC DISEASES 38CFR 3.307(a)(3): The disease must have become manifest to a degree of 10 percent or more within 1 year (for Hansen's disease (leprosy) and tuberculosis, within 3 years; multiple sclerosis, within 7 years) from the date of separation from service.... 38CFR 3.309(a) Chronic diseases. The following diseases shall be granted service connection although not otherwise established as incurred in or aggravated by service if manifested to a compensable degree within the applicable time limits under §3.307 following service in a period of war or following peacetime service on or after January 1, 1947, provided the rebuttable presumption provisions of §3.307 are also satisfied. • Anemia, primary. • Arteriosclerosis. • Arthritis. • Atrophy, Progressive muscular. • Brain hemorrhage. • Brain thrombosis. • Bronchiectasis. • Calculi of the kidney, bladder, or gallbladder. • Cardiovascular-renal disease, including hypertension. (This term applies to combination involvement of the type of arteriosclerosis, nephritis, and organic heart disease, and since hypertension is an early symptom long preceding the development of those diseases in their more obvious forms, a disabling hypertension within the 1-year period will be given the same benefit of service connection as any of the chronic diseases listed.) • • • • • • • • • Cirrhosis of the liver. Coccidioidomycosis. Diabetes mellitus. Encephalitis lethargica residuals. Endocarditis. (This term covers all forms of valvular heart disease.) Endocrinopathies. Epilepsies. Hansen's disease (leprosy). (3 years) Hodgkin's disease. • Leukemia. • Lupus erythematosus, systemic. • Myasthenia gravis. • Myelitis. • Myocarditis. • Nephritis. • Other organic diseases of the nervous system. • Osteitis deformans (Paget's disease). • Osteomalacia. • Palsy, bulbar. • • • • • • • • • • • • Paralysis agitans. Psychoses. Purpura idiopathic, hemorrhagic. Raynaud's disease. Sarcoidosis. Scleroderma. Sclerosis, amyotrophic lateral (ALS). (open) Sclerosis, multiple (MS). (7 years) Syringomyelia. Thromboangiitis obliterans (Buerger's disease). Tuberculosis, active. Tumors, malignant, or of the brain or spinal cord or peripheral nerves. • Ulcers, peptic (gastric or duodenal) What is missing from this list of “Chronic Disabilities”? TROPICAL DISEASES PRESUMPTIVE TROPICAL DISEASES 3.307 (a)(4) Tropical disease. The disease must have become manifest to a degree of 10 percent or more within 1 year from date of separation from service as specified in paragraph (a)(2) of this section, or at a time when standard accepted treatises indicate that the incubation period commenced during such service. The resultant disorders or diseases originating because of therapy administered in connection with a tropical disease or as a preventative may also be service connected. 38CFR 3.309 (b) Tropical diseases. The following diseases shall be granted service connection as a result of tropical service, although not otherwise established as incurred in service if manifested to a compensable degree within the applicable time limits under §3.307 or §3.308 following service in a period of war or following peacetime service, provided the rebuttable presumption provisions of §3.307 are also satisfied. Amebiasis. Blackwater fever. Cholera. Dracontiasis. Dysentery. Filariasis. Leishmaniasis, including kala-azar. Loiasis. Malaria. Onchocerciasis. Oroya fever. Pinta. Plague. Schistosomiasis. Yaws. Yellow fever. Resultant disorders or diseases originating because of therapy administered in connection with such diseases or as a preventative thereof. QUESTIONS? RADIATION EXPOSURE RADIATION EXPOSURE There are two citations which define diseases specific to radiation exposed veterans. The diseases listed in paragraphs 3.309 (d)(2) or 3.311(b)(2) shall be service connected if they become manifest to a compensable degree within applicable time periods in a radiation exposed veteran as defined. QUESTIONS? FORMER POW FORMER POW PRESUMPTIONS 38CFR 3.307(5) Diseases specific as to former prisoners of war. The diseases listed in 3.309(c) shall have become manifest to a degree of 10 percent or more at any time after discharge or release from active service. FORMER POW PRESUMPTIONS There are two listings of disabilities subject to presumptive service connection if manifest to a compensable degree, one based on POW experience of less than 30 days and the other listing disabilities that require POW confinement in excess of 30 days. Any period of POW confinement. • • • • • • • • Psychosis. Any of the anxiety states. Dysthymic disorder (or depressive neurosis). Organic residuals of frostbite, if it is determined that the veteran was interned in climatic conditions consistent with the occurrence of frostbite. Post-traumatic osteoarthritis. Atherosclerotic heart disease or hypertensive vascular disease (including hypertensive heart disease) and their complications (including myocardial infarction, congestive heart failure, arrhythmia). Stroke and its complications. On or after October 10, 2008, Osteoporosis, if the Secretary determines that the veteran has posttraumatic stress disorder (PTSD). • • • • • • • • • • • • POW Confinement of more than 30 days. Avitaminosis. Beriberi (including beriberi heart disease). Chronic dysentery. Helminthiasis. Malnutrition (including optic atrophy associated with malnutrition). Pellagra. Any other nutritional deficiency. Irritable bowel syndrome. Peptic ulcer disease. Peripheral neuropathy except where directly related to infectious causes. Cirrhosis of the liver. On or after September 28, 2009, Osteoporosis. HERBICIDES HERBICIDE EXPOSURE The term “Agent Orange” refers to the whole family of tactical herbicides deployed by the Department of Defense. Exposure in Vietnam Exposure in Korea Exposure in Thailand Other locations in the US and worldwide Occupational and accidental exposure If military service is determined by VA in one of the listed areas during the listed time periods and by qualifying duty, exposure is conceded and does not require evidence of exposure. All others claims of exposure (occupational) require a specific description of the circumstances of exposure and a formal determination that the circumstances described are consistent with the veteran’s military duties and did result in exposure. Exposure in Vietnam 38CFR 3.307(6) Diseases associated with exposure to certain herbicide agents. (i) For the purposes of this section, the term “herbicide agent” means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975…. 3.307(6)(iii) A veteran who…, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, …. “Service in the Republic of Vietnam” includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Proving military service in Vietnam continues to be a great challenge for many Air Force, Navy and Marine Corps veterans. Official (on orders) TDY service or other temporary duty is often difficult to prove. The greatest issue in these cases is poor memories & not lack of records. For Navy veterans, evidence of service on ships acknowledged by DOD to be in Vietnam waters is also a challenge. That last DOD update of the ship list was in January 2012. Claims to add ships continue to be reviewed by DOD. (see list of ships) Exposure in Korea 3.307(6)(iv) A veteran who…served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent… (see list of units) Exposure in Thailand The majority of troops in Thailand during the Vietnam era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a US Air Force Veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS, performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts found or direct basis. However, this applies only during the Vietnam era, from February 28, 1961 to May 7, 1975. Other Herbicide Exposure Worldwide list of DOD locations. (see list of locations) Occupational exposure on a case by case basis. Disabilities Due To Herbicide Exposure 3.307(6)(ii) The diseases listed at §3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. Herbicide Exposure Presumptive Disabilities 3.309(e) If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be serviceconnected …. (see list) • • • • • AL - amyloidosis Chloracne or other acneform disease consistent with chloracne Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes) Hodgkin's disease Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina (note 3) • All chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia) • Multiple myeloma • Non-Hodgkin's lymphoma • Parkinson's disease • Acute and subacute peripheral neuropathy (note 2) • Porphyria cutanea tarda • Prostate cancer • Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) • Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma) (note 1) • Note 1: The term “soft-tissue sarcoma” includes the following: • Adult fibrosarcoma • Dermatofibrosarcoma protuberans • Malignant fibrous histiocytoma • Liposarcoma • Leiomyosarcoma • Epithelioid leiomyosarcoma (malignant leiomyoblastoma) • Rhabdomyosarcoma • Ectomesenchymoma • Angiosarcoma (hemangiosarcoma and lymphangiosarcoma) • Proliferating (systemic) angioendotheliomatosis • Malignant glomus tumor • Malignant hemangiopericytoma • Synovial sarcoma (malignant synovioma) • Malignant giant cell tumor of tendon sheath • Malignant schwannoma, including malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor), glandular and epithelioid malignant schwannomas • • • • • Malignant mesenchymoma Malignant granular cell tumor Alveolar soft part sarcoma Epithelioid sarcoma Clear cell sarcoma of tendons and aponeuroses • Extraskeletal Ewing's sarcoma • Congenital and infantile fibrosarcoma • Malignant ganglioneuroma Note 2: For purposes of this section, the term acute and subacute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. Note 3: For purposes of this section, the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of Ischemic heart disease. On August 10, 2012 the VA published in the Federal Register /Vol. 77, No. 155 / page 47795 proposed rules to change the criteria for service connection for peripheral neuropathy as the result of exposure to herbicides. This change will have limited impact on a small number of veterans previously denied service connection for this disability. This amendment would clarify that presumptive service connection for early-onset peripheral neuropathy will not be denied solely because the peripheral neuropathy persisted for more than two years after the date of last herbicide exposure. However, this amendment would not change the current requirement that peripheral neuropathy must have become manifest to a degree of 10 percent or more within one year after the date of last exposure in order to qualify for the presumption of service connection. In Update 2010, the NAS found that evidence did not indicate an association between herbicide exposure and delayed-onset peripheral neuropathy, which NAS defined as peripheral neuropathy having its onset more than one year after exposure. The Secretary of the VA has recently requested a study to be conducted by researchers of the Army Chemical Corps on the question of a relationship (either statistical or causal) between exposure to herbicides and the conditions of Chronic Obstructive Pulmonary Disease (COPD) or hypertension. At this time there is not an announced date for this report. Service connection is granted for disabilities conceded to be the result of AO exposure. Service connection is not granted for exposure to AO. Exposure is not a disability. There must a confirmed diagnosis of a conceded medical condition with evidence of compensable disability. Cancer conditions must be primary. Once granted service connection, disabilities are evaluated based on the level of impairment as indicated by on going treatment or post treatment residuals. A claim for a condition (disability) not on the conceded list requires a medical opinion from a treatment provider that the condition is “as likely as not to a probability of greater than 50%” that the condition in the instant case is the result of herbicide exposure. Such an opinion must contain medical reference that supports the opinion. Such a medical opinion must be concurred in by either a VA physician or a BVA ordered Independent Medical Opinion (IMO). The VA is still working on the large influx of claims that came into the system in the fall / winter of 2010. These claims are processed in date of claim order. The large number of claims that were received and determined to be have had prior denials have been processed under NEHMER. We continue to find isolated cases that are potentially eligible for retroactive awards under NEHMER. These claims will continue to be processed in date of claim order. Our largest retro benefit paid under NEHMER was $526,000. QUESTIONS? GULF WAR UNDIAGNOSED ILLNESS & PRESUMPTIVE DISEASES 38CFR 3.317 Compensation for certain disabilities due to undiagnosed illnesses. Compensation for disability due to undiagnosed illness and medically unexplained chronic multisymptom illnesses. (1) Except as provided in paragraph (a)(7) of this section, VA will pay compensation in accordance with chapter 11 of title 38, United States Code, to a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability…. Compensation shall not be paid under this section for a chronic disability if there is affirmative evidence that the disability was not incurred during active military, naval, or air service in the Southwest Asia theater of operations; or if there is affirmative evidence that the disability was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations and the onset of the disability; or if there is affirmative evidence that the disability is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. The term Persian Gulf veteran means a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War (after August 2, 1990). The Southwest Asia theater of operations refers to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations or a period of active military, naval, or air service on or after September 19, 2001, in Afghanistan. …chronic disability became manifest either during active military, naval, or air service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2016; and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. For purposes of this section, disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. For purposes of this section, the term medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. For purposes of this section, “objective indications of chronic disability” include both “signs,” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. For purposes of this section, a qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) An undiagnosed illness; (B) A medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as: ( 1 ) Chronic fatigue syndrome; ( 2 ) Fibromyalgia; ( 3 ) Irritable bowel syndrome. For the purposes of this section, signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to: (1) Fatigue. (2) Signs or symptoms involving skin. (3) Headache. (4) Muscle pain. (5) Joint pain. (6) Neurological signs or symptoms. (7) Neuropsychological signs or symptoms. (8) Signs or symptoms involving the respiratory system (upper or lower). (9) Sleep disturbances. (10) Gastrointestinal signs or symptoms. (11) Cardiovascular signs or symptoms. (12) Abnormal weight loss. (13) Menstrual disorders. Presumptive service connection for infectious diseases. A disease listed in this section will be service connected if it becomes manifest (to a compensable degree) in a veteran with a qualifying period of service. The diseases referred to in this section are the following: (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix) Brucellosis. Campylobacter jejuni. Coxiella burnetii (Q fever). Malaria. Mycobacterium tuberculosis. Nontyphoid Salmonella. Shigella. Visceral leishmaniasis. West Nile virus. The diseases listed in this section will be considered to have been incurred in or aggravated by service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. With three exceptions, the disease must have become manifest to a degree of 10 percent or more within 1 year from the date of separation from a qualifying period of service. Malaria must have become manifest to a degree of 10 percent or more within 1 year from the date of separation from a qualifying period of service or at a time when standard or accepted treatises indicate that the incubation period commenced during a qualifying period of service. There is no time limit for visceral leishmaniasis or tuberculosis to have become manifest to a degree of 10 percent or more. Long-term health effects potentially associated with infectious diseases. A report of the Institute of Medicine of the National Academy of Sciences has identified certain long-term health effects that potentially are associated with the infectious diseases listed in this section. If a veteran who has or had one of the identified infectious diseases and also has a condition identified as potentially related to that infectious disease, VA must determine whether the condition was caused by the infectious disease for purposes of paying disability compensation. This list is not all inclusive. (see list) If a veteran is presumed service connected for one of the presumptive diseases listed in this section and is diagnosed with one of the long term health effects listed within the time period specified for the disease, if a time period is specified or, otherwise, at any time, VA will request a medical opinion as to whether it is at least as likely as not that the condition was caused by the veteran having had the associated disease. The Follow-up Study of a National Cohort of Gulf War and Gulf Era Veterans is the third in a series of surveys to find out how the health of 1990-91 Gulf War-era Veterans has changed over time. The study began in May 2012, and results are expected mid 2014. Researchers conducted an initial survey in 1995 and a second survey in 2005. A 2011 scientific article from the second survey, Longitudinal Health Study of US 1991 Gulf War Veterans: Changes in Health Status at 10-Year Follow-Up, finds that Gulf War Veterans’ health has worsened over time compared to the health of Gulf War-era Veterans who served elsewhere. Gulf War I (August 2, 1990 – March 3, 1991), includes Operations Desert Storm and Desert Shield Gulf War I Veterans may have been exposed to a variety of environmental and chemical hazards that carried potential health risks. VA offers eligible Veterans a free Gulf War Registry health exam for possible long-term health problems related to Gulf War service. Areas of investigation are related to the following exposures: Vaccinations Including anthrax and botulinum toxoid Pyridostigmine Bromide (PB) Round, white tablet used as pre-treatment drug to protect against nerve agent soman Oil Well Fires, Smoke and Petroleum Oil or gas wells that caught on fire and burned Pesticides Substances used to repel or destroy pests such as insects and pathogens Chemical & Biological Weapons (Khamisiyah, Iraq) Ammunitions storage depot containing warfare agents demolished by U.S. soldiers Sand, Dust and Particulates Tiny airborne matter that can cause respiratory and other health problems Depleted Uranium Uranium used in military tank armor and some bullets Toxic Embedded Fragments Shrapnel and other metals that remain in the body after injury Noise Harmful sounds from guns, equipment, and machinery that is often experienced during military service CARC Paint Chemical Agent Resistant Coating (CARC) used on military vehicles to resist corrosion and chemical agents Heat Injuries Possible health problems from extremely hot temperatures Occupational Hazards Exposures from working with chemicals, paints, and machinery during service VA is sponsoring several studies on the possible health effects of burn pits in the various locations of troop concentration and involvement in the Southwest Asia Theatre. VA asked the Institute of Medicine of the National Academy of Sciences to conduct an in-depth review of the existing literature on the potential adverse health effects of exposure to smoke from burn pits in Iraq and Afghanistan. VA currently is assessing the report. VA is conducting the National Health Study for a New Generation of U.S. Veterans. The study group includes 30,000 (OEF/OIF) Veterans and 30,000 Veterans who served elsewhere during the same time period. The study covers a wide spectrum of health effects, including those that may be associated with exposure to smoke from burn pits. VA is also participating in a Department of Defense epidemiological study begun in 2001 that has almost 150,000 participants. The study is designed to evaluate how military service may affect the long-term health of service members. Data are being collected on respiratory health. QUESTIONS? The VA Appeal Process Topics • • • • • • • • • • Notice of Disagreement Time limits Substantive Appeal (VA Form 9) VA Form 646 Advancement on the Docket Substitution Cases at the Board Hearings BVA Decisions/Remands What Next? Important Links/info 193 The words most feared within the VA: “I want to appeal!” 194 What Constitutes an Appeal? • A timely Notice of Disagreement. • VA issues a Statement of the Case. • A timely received Substantive Appeal (VA Form 9). 38 CFR 20.200 195 The Notice of Disagreement (NOD) – Must be a written communication from either the appellant or accredited representative. There is no specific form required. – Must be filed with the VA office that made the decision. – Must be received by VA within one year of date of the RO’s decision letter. (The date of letter is considered the date mailed) – Must express disagreement and a desire for appellate review. – Must identify the date of the decision being appealed and should say with what part of the decision and why the appellant disagrees. 196 Sample Wording of NOD Please accept this statement as a Notice of Disagreement and request for appellate review of the rating decision dated _________, which denied my claim for service connection for ___________, my claim for an increased rating for _________, the evaluation assigned to my ______ disability, the effective date of _______ established for my ________disability. The reason I disagree is because ___________. I request a “Traditional” or “DRO de novo” Review. I request a personal hearing before the DRO. 197 Traditional Review A review by someone in the Appeals Team at the Regional Office, but it is not a De-novo review. The reviewer reviews any additional evidence received with the NOD and either grants the benefit sought or if any issues continues to be denied, prepares a Statement of the Case. 198 De novo Review A review by a Decision Review Officer (DRO) starting at the original rating decision for the issue(s) on appeal. It is a thorough review of the file and of all the evidence and decisions up to the last decision making sure the decisions were correct. Any additional evidence sent with the NOD will also be taken into consideration when the DRO makes a decision after the De novo review. 199 No Selection on the NOD? If the Notice of Disagreement does not request a De novo or Traditional review, the VA will send a letter to the appellant, explain both reviews, and give them 60 days to make a selection. If the appellant fails to make a selection within 60 days from the date of the letter, VA will proceed with the Traditional Review. Q: So what’s the difference and why would you chose one over the other? A: A De novo review is much more thorough and a DRO could use Difference of Opinion to change the rating. 200 Difference of Opinion The DRO can change the decision based on the record if he/she believes that the better rating practice would be to grant. The DRO cannot reverse a decision with which he/she just disagrees. A difference of opinion decision does not require new medical evidence to change the previous decision. The Decision Review Officer is the only person in the Regional Office who can change a rating based on a difference of opinion. 201 What’s a Statement of the Case (SOC)? It’s a detailed description of the facts, laws, regulations, and reasons used by the RO in reaching their decision. It is not a “new” decision. It’s intended to help the appellant understand the laws and regulations used in the RO decision. It’s also intended to help the appellant formulate their appeal. (You can’t win the game if you don’t know the rules.) 202 VA Form 9 • Included with the SOC is a VA Form 9, “Appeal to Board of Veterans’ Appeals”. It is also called a Substantive Appeal. • Once the appellant has reviewed the SOC, the VA Form 9 must be completed and returned to the VA timely so that BVA will review the issues being appealed. 203 Time Limits for Filing VA Form 9 1 – 60 days from the date the SOC is mailed or the remainder of the one year period following the date of the original decision whichever is greater. 2 – 60 days from the date the SSOC is mailed or the remainder of the one year period whichever is greater. 204 Time Limits, Form 9 Remember, the time is measured from the day the VA mailed the notice of the decision being appealed. The date of the letter is considered the date it’s mailed. –However, the law does guarantee an appellant not less than 60 days to review a SOC or SSOC. 205 VA Form 9 • Must include a selection of personal hearing versus no hearing request • Must identify the issues being pursued on appeal • Must include some discussion of the each issue 206 Appeal Example #1 5/13/10 – Date of VA letter notifying the claimant of the decision. 6/15/10 – Notice of Disagreement received at the VA 11/2/10 – Date of VA letter with attached Statement of the Case. 12/18/10 – Additional information submitted. 3/18/11 – Date of VA letter with attached Supplemental Statement of the Case. 5/4/11 – Additional information submitted. 10/3/11 – Date of VA letter with attached Supplemental Statement of the Case. 207 Appeal Example #1 Q: What is the last day to submit VA Form 9? A: May 17, 2011 Q: What is the earliest date to submit VA Form 9? A: November 2, 2010 208 Appeal Example #2 5/13/10 – Date of VA letter notifying the claimant of the decision. 6/15/10 – VA received Notice of Disagreement 11/2/10 – Date of VA letter with attached Statement of the Case. 12/18/10 – Additional information submitted. 3/11/11 – Date of VA letter with attached Supplemental Statement of the Case. 209 Appeal Example #2 Q: What is the last day for VA to receive VA Form 9? A: May 12, 2011 210 HEARINGS • If the appeal has not yet been certified to the Board, a hearing may be requested to be held before a Decision Review Officer at the RO. • Once the appeal has been certified to the Board, any hearing requested on the appealed issues will be held before a BVA Judge . 211 BVA Hearing Options: • In person at the Board in Washington, D.C. • Locally before a Travel Board of the BVA. • Video teleconference hearing before a BVA Board member. Q: Which is the quickest way to get a hearing? A: Probably a video hearing 212 The BVA Docket Except as otherwise provided, the Board will consider and decide appeals in date order according to each appeal’s place upon the docket. The docket number is assigned based on the date the Substantive Appeal (VA Form 9) is received at the Regional Office. Q: When should you submit a VA Form 9? A: As early as possible after the SOC is issued, to lock in the earliest docket date possible. 213 VA Form 646 Once the VAF 9 has been filed with the VA, the veteran’s accredited representative at the regional office will be given the opportunity to make any final written argument prior to the case being sent to the Board. VA Form 646, Statement of Accredited Representative is used for this purpose. Additional information is not submitted with this form. 214 Informal Hearing Presentation Once at the Board, the case will be provided to a VSO appeal consultant to prepare a brief called an Informal Hearing Presentation (IHP). This is the Board VSO’s equivalent of a 646. The IHP will discuss the merits of the appeal. An IHP is not prepared when the appellant has a Board hearing. The hearing is considered an IHP. 215 90 DAY RULE The appellant has 90 days after the appeal is received at the Board to: • Request a change in representation. • Request a personal hearing. • Submit additional evidence. The appellant will receive a letter from the Board explaining this regulation when the appeal is received at the Board. 216 After 90 Days…. After 90 days, the appellant must demonstrate good cause for the delay such as: • Discovery of evidence after the 90 day period. • Illness which precluded a timely filing. • Death of an individual representative. Note: Anytime evidence is sent to the Board, make sure you prepare a letter stating you want to waive regional office jurisdiction. Otherwise, the case will have to go back to the regional office for consideration. 217 Advancement on the Docket The Board may grant a motion to advance an appeal on the docket for the following reasons: • The claimant is seriously ill. • The claimant is under severe financial hardship. • The claimant is of an advanced age (75 years or older). • There is other sufficient cause, to include administrative error that has resulted in a significant delay in docketing the case. 218 Substitution of Cases at the Board When a claimant in a pending appeal dies on or after October 10, 2008, an eligible survivor must file a request within one year to be “substituted” as the claimant for purpose of processing the claim to completion. VA Form 534 meets that requirement. Substitution means new additional information can be submitted for the appeal, unlike the old law where only the “evidence of record” was used to decide the appeal. The Board does not have jurisdiction to make the substitution decision. The appeal will be dismissed and returned to the regional office. Once the substitution decision has been granted, the appeal will be returned to BVA and keep the SAME docket number. 219 BVA Decisions When a BVA Judge decides the case, he/she can do several things: • Grant the issue(s). • Deny the issue(s). • Remand the issue(s). The decision may include all three. The Board will send the appellant and the VSO a copy of the decision. If the issue is granted or denied, the Board’s decision is final and will include appeal rights to the Court of Appeals for Veterans Claims (CAVC) on the denied issues. Any issue that is remanded is not a final decision. 220 REMANDS If the Board finds that it does not have enough information to make a decision on a specific issue, the Remand Decision will instruct the Regional Office or the Appeals Management Center (AMC) what it needs to make a decision. Or, if there is something that has happened, such as a change in law, request for a hearing, etc. that the appeal requires re-adjudication, the appeal is remanded. 221 Remands Once the information has been received (or an unsuccessful attempt has been made), the Regional Office or AMC will make another decision and grant the benefit sought or continue the denial and issue a SSOC. The appellant is given the opportunity to review the new decision and state whether or not he has or does not have additional evidence to submit. He also has this opportunity to tell the Board why he does not agree with the decision. 222 BVA FINAL DECISIONS What Next? Denials: • Do nothing. • File a motion with the Board to reconsider the claim because there was a clear and unmistakable error (CUE) in the Board’s decision. The motion must identify and discuss the specifics of the claimed CUE. • File an appeal with the US Court of Appeals for Veterans Claims. There is a time limit of 120 days from the date of the decision, so pay attention to the date of BVA’s decision. • Go back to the local VA RO and reopen the claim. 223 BVA FINAL DECISIONS What Next? Grants: • Sometimes the BVA decision will include the percentage and effective date; however, most of the time it doesn’t, depends on the issue before the Board. • When the RO does the rating implementing the BVA decision check for percentage and effective dates on grants/and increases. That decision can be appealed on evaluation assigned and/or effective date. 224 Court of Appeals for Veterans Claims If the appellant continues to disagree with a BVA decision, he can file an appeal with the Court. VFW does not represent, nor recommend an attorney or law firm. We will refer them to the Pro Bono Consortium at the Court. There is a 120 day time limit to file and a $50 filing fee that can be waived. (hardship). http://www.uscourts.cavc.gov/ 225 Other Opportunities Following Rating Board Decision Request for Reconsideration by Rating Board? There is no such provision in regulation, however: • Submission of new evidence within 12 months • Identification of evidence of record not considered Does not extend appeal period unless evidence is in timely response to DTA letter. 226 Clear & Unmistakable Error (CUE)? No Time Limit for Request! Regulations: 38 CFR 3.104(b) 38 CFR 3.105(a) 38 CFR 20.1403 An un-appealed RO decision with the elements of a CUE, as outlined in Russell v. Principi, 3 Vet.App. 310(1992). 227 CUE • Review of evidence of record is so compelling that reasonable minds would not differ, un-debatable. • Must be considered under the laws which existed at the time of prior decision. • A different decision on the evidence would have manifestly changed the outcome. 228 Administrative Review Request? • Request by VSO prior to SOC for review by VA Central Office through VFW NVS. • Very unique circumstances usually based on argument of reasonable doubt or equity. • Not every VSO has established procedures for AR requests. 229 Important Links/Info The Department of Veterans Affairs, Board of Veterans Appeals – How Do I Appeal pamphlet. www.bva.va.gov Veterans Benefits Administration (VBA) – Benefits information, links to VA Forms, regulations. www.vba.va.gov/vba Department of Veterans Affairs – Electronic FOIA reading room – Links, answers to a number of VA issues. www.foia.va.gov United States Court of Appeals for Veterans Claims – Court cases, information on how to appeal a BVA decision and filing with the Court. www.uscourts.cavc.gov 230 231