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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VA’s disability compensation rates for 2013 include a 1.7 cost of living increase. You can see the 2013 table here – http://benefits.va.gov/COMPENSATION/resources_comp01.asp

One of the issues that is currently being discussed in the Senate Veterans’ Affairs Committee is the impact of the proposal for a “chained CPI” index to be used in calculating benefits. This is likely to result in a cut in benefits for those receiving VA disability, as well as for Social Security recipients. Veterans’ organizations have testified recently before joint sessions on the Senate and the House Veterans’s Affairs committees on the impact of this proposal, and Senate Committee Chairman Bernie Saunders has indicated concern about this proposal.

Press releases about the testimony of veterans’ organizations can be found here:
http://veterans.senate.gov/press-releases.cfm?action=release.display&release_id=817d03fa-56a3-4457-bd3f-1d7dac3ea72e

http://veterans.senate.gov/press-releases.cfm?action=release.display&release_id=cb65dea1-e38d-4533-8088-dfd4f1a47b2f

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The Department of Veterans Affairs offers two major disability benefits programs: (1) service-connected disability compensation and (2) non-service connected disability pension. Both benefits are based on the disability of the veteran and the disability’s effect on employability. VA pension is a needs based program. To be eligible for pension, a veteran must have wartime service, low income, and be totally and permanent disabled. Because this benefit is for low income people who are totally and permanently disabled, VA will reduce VA pension dollar-for-dollar for “countable” income. Compensation is not based on need or income. Compensation is based on a disability being caused by or otherwise related to the period of military service.

Social Security Administration, offers two major benefit programs: (1) Social Security Disability (SSDI) and (2) Social Security Income (SSI).

Generally, veterans can receive both SSDI and VA Compensation Benefits concurrently. For pension purposes, however, VA will count income from almost all sources, including SSDI income (but not SSI) to determine income for pension purposes. See 38 C.F.R. § 3.261 (2012). This means that if a veteran is receiving VA pension benefits and he/she begins receiving SSDI benefits, VA will offset the amount received from Social Security from the pension payment.

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In October 2009, the Department of Veterans Affairs, in conjunction with the Department of Defense, launched a web portal that provides resources and self-service capabilities to Veterans, Servicemembers, and their families. It provides the ability to research, access and manage their VA and military benefits and personal information. The site is intended to help achieve Secretary Shinseki’s goal of eliminating the backlog and increasing decision accuracy.

Veterans and Servicemembers can access the site at www.ebenefits.va.gov where they will be guided through the registration process to obtain a premier account. With a premier account, veterans can apply for benefits, download their DD 214, and even check the status of compensation and pension claims.

On July 1, VA introduced its latest quarterly release. The new release streamlines the login process for several VA websites, allowing veterans to access their eBenefits, myHealtheVet, and VA for Vets information without signing in to multiple sites. With this new release, there are now 46 self-service features available through the site. Servicemembers and Veterans can download copies of their official VA and military correspondence, including service verification, benefits verification letters, military records, and VA home loan certificates of eligibility. They can also access Post-9/11 GI Bill enrollment status, VA payment history, and DoD TRICARE health insurance status.
The new release also includes access to a new Career Center page. The Career Center includes self-assessment tools and a resume builder, as well as a “translator” that relates military expertise to civiliam work skills. Through the Career Center, Veterans with access to the VA Veteran hiring site, “VA for Vets,” a VA program aimed at retaining and recruiting veterans.

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On June 4, 2012, the Department of Veterans Affairs announced that its Advisory Committee on Disability Compensation will hold a meeting, open to the public, on June 25-26, 2012, at the St. Regis Hotel, 923 16th and K streets, NW, Washington, D.C.

The Committee advises the Secretary of Veterans Affairs on the maintenance and periodic readjustment of the VA Schedule for Rating Disabilities. The Committee assembles and reviews information relating to the nature and character of disabilities arising during service in the Armed Forces, provides an ongoing assessment of the effectiveness of the rating schedule, and gives advice on the most appropriate means of responding to the needs of Veterans relating to disability compensation.

The purpose of the meeting is for the Committee to receive briefings on issues relating to compensation for Veterans with service-connected disabilities. Public comments will be allowed in the afternoon and will be limited to three minutes each. Individuals wishing to make oral statements before the Committee will be accommodated on a first-come, first-served basis.

Any member of the public wishing to attend the meeting or seeking additional information should contact Robert Watkins, Designated Federal Officer, Department of Veterans Affairs at (202) 461-9214 or Robert.Watkins2@va.gov.

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On May 24, 2012, the Senate confirmed two new judges for the Court of Appeals for Veterans Claims. The Court has three vacancies and the addition of two new judges to fill two of those vacancies will be a welcome development.

The two new judges are Margaret Bartley and Coral Wong Pietsch.

Judge Bartley was previously senior staff attorney at the National Veterans Legal Services Program (NVLSP) and also Director of Outreach and Education for the
Veterans Consortium Pro Bono Program, where she served since 2005. She also served as Editor of The Veterans Advocate® where she had previously worked as Assistant Editor and contributing writer. She represented veterans and their dependents and survivors before the CAVC and the Board of Veterans’ Appeals from 1995. Following law school, she served as a judicial law clerk for the Honorable Jonathan R.Steinberg, formerly of the CAVC. She holds a B.A. from Pennsylvania State University and a J.D. from American University Washington College of Law.

Judge Pietsch retired from the Army in 2007 as a brigadier general after having served inthe Judge Advocate General Corps since 1974. Since her retirement, she has been living in Hawaii, where she has worked as a civilian attorney for the Army. She has also served on the Hawaii Civil Rights Commission. She was the first woman general in the 228-year history of the Army’s Judge Advocate General’s Corps and the first Asian-American woman to hold the rank of brigadier general in the Army, promoted to brigadier general while a member of the U.S. Army Reserve. She holds a B.A. from the College of St. Teresa, an M.A. from Marquette University, and a J.D. from the Catholic University of America.

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VA recently announced that it will add around 1,600 mental health clinicians, which include nurses, psychiatrists, psychologists, and social workers and approximately 300 support staff to its already existing workforce of 20,590 mental health employees.

The Secretary of Veterans Affairs Eric K. Shinseki explained that as more Veterans return home from war, all must be done to provide access to quality mental health care. Funds for the increase in staffing will come from the current budget.

To see the official VA announcement, please view this link http://www.va.gov/opa/pressrel/pressrelease.cfm?id=2302

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On April 14, 2012, four attorneys and a paralegal from Goodman, Allen and Filetti’s Veterans Benefit Group participated in a free legal clinic for veterans and their dependents in Virginia Beach, Virginia. The clinic, which was sponsored by the American Bar Association and the Old Dominion University Student Veteran Association, was attended by 85 veterans, who were able to meet with an attorney to discuss their case and get free legal advice on how to proceed. Another free clinic is scheduled to take place in late Summer, and the attorneys and paralegals from Goodman, Allen and Filetti will be there once again.

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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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What is a C&P Examination?

Three things must be shown for a veteran to be eligible for disability compensation benefits from VA.

1) The veteran must have a current disability.
2) The veteran must have been injured or developed a disease in service, or have had a pre-existing condition which was made worse by service.
3) There must be a nexus between the in-service event or injury and the current disability. This usually means that a veteran needs to provide medical evidence that his or her current disability was caused or made worse by something that occurred during military service.

If a veteran is seeking service connection for a disability, the Compensation and Pension Exam (C&P Exam) is used by VA to establish the above requirements. The exam can be used to determine whether the veteran has a current condition and whether that condition is related to his or her service.

If a veteran is seeking an increased rating for a disability because it has gotten worse, a C&P exam can be used to determine the severity of a current condition.

Along the same lines, if VA believes that a veteran’s condition has improved or if the condition is one that requires reevaluation, VA can order an examination to determine the current severity of the condition.

If you are applying for disability compensation for multiple disabilities, each disability will be separately evaluated. Some facilities will complete all of the examinations at once; others will require you to report for multiple exams. It is important that you report to all of your scheduled exams.

What happens if I don’t go?

It is vital that you attend any scheduled C&P examinations. Failure to attend an exam can result in denial or termination of benefits.

• Newly filed claim for compensation

When a veteran fails to report for an examination, without good cause, the claim will be rated based on the evidence already contained in the file.

• Reopened claim or Claim for Increase

When a veteran fails to report for an examination, without good cause, the claim will be denied.
• Reexamination

When a veteran fails to report for a reexamination, VA will issue a pre-termination notice advising the veteran that payment will be terminated or reduced. The veteran will be provided with 60 days to indicate his or her willingness to report for the reexamination.

Good cause may include the illness or hospitalization of a veteran or the death of an immediate family member.

What if the date doesn’t work for me?

If you have a conflict with the scheduled date and time of your VA examination, contact the individual listed on your exam notification letter. C&P exams can be rescheduled on a one-time basis when the veteran requests that the examination be postponed for a valid reason. You should reschedule your examination as soon as you realize you have a conflict. Remember, if you do not reschedule your exam and you fail to attend, your benefits may be denied or terminated.

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