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:
•
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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:
•
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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.)
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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.
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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.
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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).
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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)
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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
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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
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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.)
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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.
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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.
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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.
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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
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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.
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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
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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.
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Appeal Example #2
Q: What is the last day for VA to receive
VA Form 9?
A: May 12, 2011
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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 .
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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
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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/
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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.
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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).
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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.
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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.
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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
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