Veterans Benefits Blog

Many veterans whose claims are appealed successfully to the Court of Appeals for Veterans Claims (CAVC) are confused and even dismayed to realize that no money is coming to them from VA even though they have won their cases. This dismay sometimes becomes greater when they learn that their lawyer got paid for work at the court. If I don’t get any benefits, the veteran asks, what have I won?

The short answer is that the veteran has won the ability to continue his or her claim at the agency with the same effective date for any benefits that are eventually awarded. If the appeal to the CAVC is lost, then the claims are dead and have to reopened, with a new possible effective date no earlier than the reopened claims.

The CAVC does not grant benefits and, with very rare exceptions, its judgments do not immediately result in the VA granting benefits. This is because the Court is a court of appeals, a court of review. What it reviews is the VA claims process and whether it was properly carried out under the law in a given case – not whether the ultimate decision on benefits was correct. That is why a favorable decision from the court does not result in benefits being awarded but instead results in the case going back (being “remanded”) to the VA for further development and another decision. The court considers only whether where are ways in which VA did not follow the law in developing and deciding the claim, so when it concludes that VA did fail to follow the law, the remedy is to have the agency redo the process without making the same error. The hope is that VA will do everything correctly next time, but, alas, that is often not the case; another trip to the court is then required to get the new error straightened out.

The nature of the court’s review is why arguments before the court are not about why benefits should be awarded but rather about how the Board was wrong in some aspect of its decision denying the benefits. The court’s role as assigned by Congress is to correct such errors and then let the agency (VA) take another crack at doing it right.

So how is it that a lawyer would be paid for a “win” at the court but the client not see any money? Most lawyers who represent clients at the CAVC do so without charging a fee to the clients. This is possible because the lawyer – who is not a charity, after all, but must pay the rent and light bill like everyone else – will be paid, if successful on the appeal to the court, by the government under the Equal Access to Justice Act (EAJA). Note the emphasis: the lawyer gets paid only if successful, so she is still gambling, since she could spend a great deal of time and effort and still not get paid if she loses. That is why lawyers offer such representation only where they believe there are errors in the Board decision that the court will wish to correct. The money paid to lawyers under EAJA is not taken from the client in any way; indeed, if benefits are eventually awarded by VA and the veteran is represented by the lawyer under a contingent fee agreement, the lawyer must refund to the client a portion of the fee equal to the EAJA payment the lawyer received.

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At least 16 veterans of the Iraq and Afghan wars were elected to Congress in the recent election, a record number. Presumably, this will mean a good level of attention to veterans matters. It is needed.

Recent news also brings a story which illustrates the very sad state the Department of Veterans Affairs claims system is in and how dire the need for reform. A former employee of the VA’s Oakland regional office has filed suit against VA for wrongful termination, alleging that she was fired because instead of simply denying a veteran’s long-pending claim on again, she undertook to investigate and try to get to the bottom of the question of whether he had combat service.

Whether the allegations in this particular case turn out to be true, there is really no doubt that the claims system favors denial as the quickest, least labor-intensive way to attempt to clear backlogs. Indeed, each concerted effort by VA over the years to decrease the backlog has resulted in incentives being provided to VA employees not to make good, correct decisions based on complete records, but rather to clear cases. This, not surprisingly, results in behavior as alleged in the Oakland suit. It is simply easier and quicker to deny a claim than to develop and evaluate it properly. Whether the claimant simply gives up or seeks appeal, the file moves off someone’s desk and he or she can claim to have cleared a case.

The obvious solution is more and better trained staff, but this requires both money and attention. Perhaps the new Congress will consider both.

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Virtually every veteran claimant has a similar frustration with the slow pace of the VA  claims process. The picture is of claims files stacked in the Winston-Salem, NC regional office, so many that the structural integrity of the building is in question, the weight thought to be too much for the floor structure to bear!

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Veteran claimants are often mystified by the nature of court review of the VA’s actions on their claims, and with good reason. The nature of that review is not what one might expect from the general understanding of what courts do.

First, what sort of agency action can be reviewed by the courts? There must be a final agency decision, i.e., a decision of the Board of Veterans’ Appeals finally resolving a particular issue. Note, importantly, that a BVA decision that denies some claims and remands others must still be appealed (within 120 days of the Board decision) as to the finally denied claims or the claimant loses the opportunity to do so. Note also that if the Board addresses and grants a claim, say for sinusitis, but there is evidence of a related condition such as rhinitis and the Board does not discuss it, it may be determined that VA “implicitly denied” the latter by granting the former, even though it didn’t mention it. The law on whether the Board can implicitly deny a claim is not entirely clear as yet, so if you have any doubt, consult a lawyer.

If you have a final Board decision, you appeal by filing a notice of appeal with the Court of Appeals for Veterans Claims. What will the court consider and resolve? One thing it will almost never resolve is whether you ultimately get benefits. This seems contrary to what we think of courts doing, based on what we read in the media or see on TV, but it has to do with the nature of these courts. Unlike the trial courts familiar from the media, the Veterans Court and the court above it, the Court of Appeals for the Federal Circuit, are appellate courts that do not make ultimate resolution of cases. Instead, their responsibility is to police the process, to make sure the law was followed correctly.

Claim adjudication involves application of rules of law to the facts of a claim. The law includes the procedures for claim development and the requirements to establish entitlement to benefits. The facts will determine whether the claim succeeds under the law. So there are two components – law and fact – to every claim. Courts thoroughly review the agency’s handling of the law but examine its consideration of the facts only in a very limited fashion. This is based on a congressional determination that the agency has special expertise in understanding the facts of veteran claims.

When a court finds error in a claim, it is because the VA has done something it ought not to have done, or failed to something it was required to do, under the law. That is why the court sends the case back (remands) to the agency to be redone, so the legal error can be corrected. Notice that this review has little to do with the facts and whether you ultimately win your claim. The Veterans Court will intervene in a fact determination by the agency only if it is “clearly erroneous,” so plainly wrong that there can be virtually no disagreement about it. Because evidence is rarely indisputably supportive of only one side of a claim, it is very difficult to show that a factual finding is clearly erroneous. On appeal of a Veterans Court decision, the Federal Circuit is not permitted to review factual findings at all, and may not even review “application of law to fact,” which makes its scope of review very narrow indeed.

This is why court review of agency decisions almost never resolves the ultimate question of entitlement to benefits. Once the courts correct the legal procedure, the VA must then make the ultimate application to the facts to determine the question of benefits. Unfortunately, it sometimes takes several challenges through the courts to get VA to handle the claim properly under the law.

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The United States Patent and Trademark Office on November 10, 2011, issued a notice that it is seeking to double the number of veteran hires over previous years for the position of patent examiner.  It intends to hire more than 1500 patent examiners this year and hopes that ten percent of those new hires are military veterans.

What is a patent?

A patent is a temporary monopoly right, in a sense, that is issued by the government to protect certain types of intellectual property, such as inventions or novel processes, from market competition for a limited period of time.  Patent law seeks to balance society’s interest in free access to new technologies against the need to encourage people and companies to invest the necessary time and energy into developing such inventive or creative products.  Some technologies require high levels of investment of time or effort to develop but yield an ultimate product that can be discovered or reverse-engineered rather easily.  A good example is a drug formula: it can take years of research and enormous sums of money to develop and test a medication and then get FDA approval for it, but the end result is a tablet that can be chemically analyzed and reproduced relatively inexpensively by someone else.  Patent protection gives the developer of the invention the exclusive right to use and sell it for a limited period of time (20 years) before it becomes open to others.  This is why there are no generic alternatives for more recent drugs.

What does a patent examiner do and what are the basic job requirements?

After a period of extensive training, a patent examiner is assigned to review patent applications within a particular field of technology to determine if those patent applications comply with law and reflect a genuinely novel invention. The examiner scrutinizes applications, determining the scope of protection claimed by the inventor, researching relevant technologies, and communicating findings and decisions in writing to inventors or their representatives.  This involves extensive review of technical information, including detailed drawings or process diagrams. It requires the analytical ability to efficiently digest large volumes of scientific information and to use this ability in making timely decisions regarding the patentability of an invention.

The basic requirements for consideration are that one be a U.S. citizen and either hold a four-year degree in engineering or science from an accredited college or have a sufficient combination of education and experience.  One must also be willing to relocate to the Washington, DC area, but examiners are afforded opportunities for flexible work schedules and telecommuting.

For more information on the USPTO veteran hiring program, contact Mr. Fred Steckler at frederick.steckler@uspto.gov or call 571-272-9600.

Should you, as a veteran, become a patent examiner, you could conceivably interact with Goodman, Allen & Filetti lawyers not only through our work assisting our nation’s veterans in seeking benefits, but also through the work of our Intellectual Property Practice Group in assisting our nation’s innovators in seeking patent protection through the USPTO.

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Why is VA so slow to process claims?

VA is a huge government bureaucracy. All bureaucracies, whether government or corporate, are slow, inefficient, subject to channeled thinking. They are inherently cautious and have many interconnected parts, and actions require multiple reviews and sign-offs. Political influences on, and scrutiny of, government bureaucracies increase the natural cautiousness.

Understaffed, undertrained, overworked, overwhelmed. VA handles hundreds of thousands of claims. Many have merit but not all do. Some people, seeing a federal fund of money, regard VA benefits as a possible source of easy money. With responsibility for the use of taxpayer money, VA must sort through all the claims to separate the bogus from the legitimate. The agency is challenged to find, train, and retain enough qualified employees to deal with this burden of work.

Conflicting incentives. Sometimes the very measures taken by VA to speed processing of claims result in losing ground. For example, when VA creates incentives for clearance of claims faster, the easiest way to deal with a claim quickly is to deny it, often without doing all the proper development. This results in appeals and redoing the claims, sometimes over and over.

Creeping bias. Most VA employees, however effective or ineffective, are sincerely trying to do their jobs properly. Dealing with such a vast number of claims, however, sometimes creates a sense of skepticism on the part of reviewers. This suspicion that most claims are without merit can result in denial because of a tendency to favor evidence adverse to the claim or insist upon corroboration of evidence that should not require it.

What can be done about it?

The short answer is that there is no cure-all; to a certain degree the system is what Congress has established, limited by realities of claim volumes and the labor market. But there are some things that can help avoid undue delay.

Support claims. If you are preparing to file a claim, collect or think about the necessary evidence to prove it. Claims for service connection require showing a current disability that is related to an event of injury or disease manifestation in service. Unless the disability is obvious, such as an amputation or scar, you will need medical records to demonstrate it. VA will request necessary records if you identify sources, but as the patient you can often save time by requesting them yourself. If your injury or illness in service is reflected in military records, that will suffice; if not, you can describe it in a statement but VA will usually want corroboration, so you should solicit statements from witnesses – fellow soldiers, family members, co-workers who are familiar with the events. Finally, unless you have documented symptoms that have continued since service, you will need to establish an evidentiary connection between the in-service event and your disability. This usually requires a medical opinion, which VA may or may not obtain on its own; again, time can be saved if you get an opinion yourself.

Simplify. Having multiple claims also causes delay, especially if they are not proceeding simultaneously. VA cannot rub its stomach and pat its head at the same time. Claims at different stages require attention by different personnel in VA, and the claims file can only be in one place at a time.

Heed notices. If your claim is denied, pay close attention to the reasons given in the Rating Decision or Statement of the Case and consider how to address them. You may need to obtain additional evidence on the elements discussed above.

Be insistent but polite. Bureaucrats are human beings (strange but true!). Like any human, a government employee responds better to courtesy and respect than to threats or anger. Dealing with VA is often infuriating, but losing your cool accomplishes nothing because, realistically, VA employees have little pressure on them to handle any particular claim promptly. But it is important to keep steady pressure on VA. Call or write VA about pending action at regular but reasonable intervals, about every 30-60 days. Writing to your congressional representative cannot force any particular decision by VA but it can sometimes help focus some attention on a file if it has been languishing without action for a long time. Do not resubmit evidence, as this simply bulks up the claims file and causes delay.

Last resort. There is one mechanism to compel attention and possibly action by VA if delay becomes extraordinary. It is possible to petition the Veterans Court for an extraordinary writ of mandamus, an order directing the agency to do something. It is called extraordinary because the court regards it as an extreme measure, to be done only in the most egregious cases. The court very seldom actually issues a writ; sometimes just filing the petition, however, prompts the agency to get something moving again.

We would be happy to answer questions about any of this information.

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The United States Supreme Court does not often hear cases from the veterans claims system, but it recently issued a decision in Henderson v. Shinseki that was favorable to veterans, though the claimant in this case is not completely out of the woods.

All appellate systems have prescribed periods for appealing to a higher court. In many instances the filing of a document to initiate the appeal, a notice of appeal (NOA), is “jurisdictional,” meaning that failure to file it properly deprives the court of the power to hear the appeal. The issue for the Supreme Court was whether Mr. Henderson’s claim had suffered this fatal blow when, because of a paranoid schizophrenic episode, he missed the filing deadline for his appeal to the Veterans Court. That court and the Federal Circuit above it held that this failure required dismissal of the claim.

The Supreme Court reversed, however. It recognized that veterans’ appeals are part of a unique administrative scheme, and it said that the statute containing the appeal deadline indicated Congressional concern for veterans, such that Congress would not have intended the deadline to be jurisdictional.

The high court noted that the deadline was an important rule, however, and it sent the case back for further consideration as to whether there was any exception that should be applied. There is a principle called “equitable tolling” that may allow the court to hear the appeal if it is found that ultimate fairness and justice so requires.

While it is a victory for veterans that the court allowed for the possibility of some exceptions to the strict deadline, there is no assurance in advance that an exception would apply. This reinforces the crucial importance of filing a notice of appeal on time and in the proper place.

To appeal to the Veterans Court from the agency (Board of Veterans’ Appeals), the notice must be filed within 120 days of the Board’s decision and it is filed with (sent to) the Veterans Court itself, not the agency. To appeal from the Veterans Court to the Federal Circuit, one has 60 days from the entry of judgment by the Veterans Court (usually about 21-22 days after the decision), but the filing is made with the Veterans Court, not the Federal Circuit.

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Wrestling benefits out of VA is usually a battle of attrition. While a few claims sail efficiently through the system, this is by far the exception. Most claims are a matter of wearing VA down through slow development of the claim and repeated challenge of decisions and correction of errors. The nature of this system moves many veteran claimants to approach the claims process with a shotgun, or perhaps blanket artillery fire, repeatedly throwing everything they have into the fray in the hope that something will score a hit. But is this the best approach?

Yes and no. VA is notorious for losing or ignoring evidence, so tenacity and repetitive attacks are indispensable. But there are distinct drawbacks to this approach that may not be appreciated by claimants, so some thoughts about strategy may be helpful.

One thing is obvious if you think about it: a huge file full of paper is harder to find things in than a smaller file. When a claims file is full of dozens of submissions of the same items, any single item becomes harder to find. There is also a tendency to skip over things you’ve seen frequently, so if something new is included among a pile of repetitious stuff, it is apt to be missed.

Another consideration is that VA will do nothing on a claim without the claims file. The processing of claims, however, requires the file to be shifted around to various sections or even different offices. This causes delays when there are multiple claims submitted: if a shoulder claim necessitates a VA examination, while the file is at the VAMC it is not available to anyone to work on another claim. Likewise, if one claim is on appeal at the Board of Veterans’ Appeals or at the Court of Appeals for Veterans Claims, work is essentially frozen on other claims until the file can be released back to the regional office.

What is the best way to minimize these problems? Try to be as organized in your submissions as possible. Remember the essentials of proof of the claim: if for service connection, you will need evidence of a current disability, of events or symptoms in service, and of a connection between them; if for an increase in rating, you will need evidence of your current medical condition. Try to muster and submit these items together. If you have to make repeated submissions, do not resubmit materials you’ve already submitted (unless you have reason to think VA has lost them); instead, submit any new material and call attention to previously submitted items by date and subject in your cover letter. Always keep copies of everything you submit to VA and keep track of the date you submitted it.

If you have multiple disabilities, it is best if you can submit claims for them all at once. If that is impossible, as when a condition develops or worsens later, submit the most organized and complete set of evidence that you can. Just remember that every new claim requires development, which in turn requires the claim file to be used by one agency group and therefore be unavailable to other groups. You don’t want to delay submitting a meritorious claim, as that could affect your effective date for benefits, but it may be best to prioritize your claims, pursuing first the ones most likely to succeed (strongest connection to service, worst medical condition). It is not effective to throw many claims at VA in the hope that something will stick if some of the claims are very weak.

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     Whether a veteran claimant is seeking to establish service connection for a disability or obtain an increase in rating, a medical assessment by a doctor or other health care provider will almost always be vital. To establish service connection, a claimant needs to show a causal relationship between his or her current disability and some event or manifestation of disease in service, which, except in very obvious cases, will have to be established by someone with medical expertise. Likewise, evaluation of the degree of impairment most often requires a doctor’s input.

   Many claims fail at VA initially because the necessary medical assessment is not obtained. Veterans seeking benefits can greatly shorten the agony of a prolonged involvement with VA by dealing with this need early on. Two challenges arise.
   One is locating a doctor willing to provide the assessment. While doctors can be engaged to provide “independent medical opinions,” this is a service that must be paid for by the veteran and is usually rather costly. By far the best option for obtaining an assessment is usually the veteran’s treating physician. Such a doctor will be familiar with the veteran’s condition and will usually want to be helpful to his or her patients. This circumstance may be complicated if the veteran receives her health care from a VA facility. There used to be a VA policy that actually encouraged VA doctors to assist veterans with supporting their claims via medical opinions. That policy was abandoned by VA. But there is no prohibition against VA doctors providing information, including expert assessment, to veterans pursuing claims; some VA doctors seem to believe, mistakenly, that there is such a prohibition.
   If a veteran receives care from a non-VA doctor, or is able to convince his VA doctor to provide help, what is needed is a statement from the doctor in writing that addresses the issue in a way that will be useful in supporting the claim. (The assurance that a written statement will suffice and no live or deposition testimony will be necessary, is often a selling point for doctors.) Again, much waste of time and stress can be avoided if the medical opinion is done right to begin with. Many statements from private doctors are of little help because the doctors do not understand the VA system and do not provide the crucial information.
   Doctors do not think like lawyers, and the claim process is a legal system. One important thing to get straight with the doctor is the VA standard of proof: many doctors, if they’ve had any acquaintance with the legal system at all, will be comfortable stating opinions only to a “reasonable degree of medical certainty.” This is commonly required in civil litigation, but it is not the basis for establishing a fact in a veteran claim. Veterans need only demonstrate that something is “as likely as not” true, so doctors need to understand that if they are comfortable saying that something is just as likely as unlikely, that is enough to support a claim.
   It is also important to have the doctor include the necessary information to make the opinion valuable. She should list or describe the medical data relied on: the records reviewed, examinations performed, and tests administered. She must then provide not only a bald conclusion such as “the arthritis is related to the injury in service,” but also a reason for the conclusion, such as: “arthritis can result from traumatic injury of the type the veteran received in service, and there are no other obvious causes in the medical history, therefore it is as likely as not that his arthritis is related to service.”
   Securing a solid medical opinion can often win a case outright and, at the very least, it can make it more difficult for VA to deny, which is sometimes the essence of the fight.

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In a previous blog posting I discussed evidence in veterans cases, including a feature unique to this system, the rule that if evidence is approximately balanced on any given point, the veteran claimant is supposed to be given the benefit of the doubt. In actual practice this favorable rule is not applied because VA determines that the evidence is not balanced. This posting will discuss how that occurs and some hints about developing your evidence to avoid some of the most common reasons for losing claims.
How VA gets around the benefit-of-the-doubt rule
The equipoise standard in veterans cases seems like a highly favorable factor: all one has to do to win is show it’s 50-50. The rub comes in the fact that weighing evidence has a large component of subjective judgment, and by finding some items of evidence more believable than others, VA can conclude that the evidence is not balanced but is one-sided against the claim. In the example in the previous posting about a soldier fall and the immediate treatment records not including any mention of a head injury, the decision-maker might choose to believe that triage doctors are very thorough in noting any symptoms complained of, so the omission of any mention of a head injury would weigh very heavily in this decision-maker’s evaluation of the evidence. To a certain degree the decision-maker is permitted to make these evaluations and the Veterans Court will not disturb the agency’s conclusions if they are plausible.
On the other hand, VA quite often brings completely unwarranted assumptions into its weighing of evidence, such as the notion that if there are no complaints of symptoms or treatment for a condition in medical records, the veteran had no such symptoms or condition; the notion is based on the assumption that all patients always consult a doctor for every condition or complaint they have. It’s not true and it’s not in the evidence, but VA will assume it anyway. These sorts of erroneous evaluations of evidence are often the basis for appeal.
Good evidence
Presenting strong evidence to support a claim is vital to its success. The best way to accomplish this is, first, to know the key facts necessary to prove a claim, what lawyers call “elements.” The three elements of a service-connection claim are (1) an incident in service, i.e. an injury or first manifestation of a medical condition, (2) a current recognized disability, and (3) a causal relation between (1) and (2), i.e. the disability is the same condition or related to the incident in service in some way.
VA is required to send notice to all claimants of what must be proven; it often obscures this information in a blizzard of legal provisions or misleading statements about the duty to assist, but somewhere in the notice letter sent after the claim is filed will usually be a listing of the elements. Ask yourself if you have submitted or can obtain convincing information on each of those elements. (This inquiry can also serve to prompt the threshold question central to any claim: is there a provable entitlement to the benefit sought? VA does not award benefits based on sympathy or veteran hardship; it does not care legally whether you are in financial straits. It can only award based on evidence.)
Especially bear in mind that, whether your claim is for service connection or for increase of rating, it requires medical expert evidence to establish one of the key facts: you must show causal relation with an incident in service for a service connection claim, and you must show degree of severity of the condition in an increased rating claim. If you don’t have such evidence, you need to get it, either through treating physicians or perhaps by pressing VA to get a medical opinion. Having evidence that supports each of the necessary elements is the most important factor in developing a successful claim.
What is good evidence? Anything pertinent to an issue of the claim, that is, one of the crucial facts that must be proven, is relevant evidence and must be considered, but certain qualities affect the weight given to evidence. A few hints:
Direct personal knowledge. Hearsay (something somebody else told you), which is a concern in other types of legal cases, is not strictly taboo in veterans cases, but evidence is unquestionably stronger if it comes from someone with direct personal knowledge of the fact in question. A veteran can, for example, say that he received a certain diagnosis for a condition, but much stronger, more convincing evidence would be the actual medical record in which the diagnosis was stated or a statement from the doctor who made it.
Expert versus lay testimony. Related to the last point is that those to provide evidence must be “competent” to do so. This is a legal term that basically means, possessed of the knowledge, training or experience to reliably say what is being said. Thus, a family member could be perfectly competent to say that a veteran had a limp when she returned from service, but unless that family member is a doctor, he is not competent to say that the veteran had a hip dislocation; the latter requires medical training and judgment. Don’t overlook, though, the capability of lay persons to competently attest to what they can clearly see or perceive.
Corroboration. Although it is supposed to be neutral, VA in fact views anything a claimant says as suspect, because there is always the possibility that the claimant is fabricating or exaggerating something in order to get money from the government. This factor can be offset through corroboration: records or other witnesses who can verify what the claimant is saying. Even a writing made by a claimant can serve to corroborate, if the record was made contemporaneously with the event, e.g. jotting down immediately afterward what happened during a medical exam or an accident. If reliance must be placed solely on a claimant’s recollection, it can be strengthened through detail that increases the plausibility of the story. Needless to say, any hint of falsehood or inaccuracy seriously undermines the value of evidence.
By paying careful attention to whether you have evidence on each of the key facts, and observing the preceding tips for making that evidence as persuasive as possible, you can significantly improve your chances of VA making a favorable decision initially, but even if it doesn’t, you will have vastly improved your chances of a successful appeal and eventual favorable decision.

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