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.

David E Boelzner FAQs, Veterans Benefits Claims EAJA, Equal Access to Justice Act, veterans disability benefits, Veterans Disability claims

In February 2013, Goodman Allen & Filetti obtained approximately $825,000 in retroactive benefits on behalf of a veteran from the Department of the Veterans Affairs Montgomery, Alabama Regional Office (VA).

The attorneys and paralegals in our Veterans Benefit Practice Group worked tirelessly on this matter beginning with representation at the U.S. Court of Appeals for Veterans Claims in 2007 where they were able to secure a decision sending the case back to the Board of Veterans’ Appeals (Board) for further development and adjudication. The VA continued to reject the argument that the veteran’s claim for T12 myelopathy with bowel and bladder paralysis, the loss of use of lower extremities, and the loss of anal and bladder control, was due to a military connected intervertebral disc syndrome. Following years of submitting argument and evidence in support of the veteran’s claim for service connection and the case transferring back and forth between the Regional Office and the Board, the VA, in August 2011 finally granted service connection for what they “renamed” myelopathy with chronic pain of the right and left lower extremities, both rated at a 10% disability. Despite the good news of the VA’s recognition and acceptance of the service connection, a disability rating of 10% in light of the significant disabilities the veteran was experiencing was simply unacceptable. The decision was appealed and another two years of persistence and impatience transpired before the VA finally gave recognition to the true extent of the veteran’s condition and granted entitlement to 100% disability benefits for various medical disabilities dating back to May 2001, including, entitlement to special monthly compensation based on the need of aid and attendance, automobile and adaptive equipment, specially adapted housing, and dependents educational assistance.

For additional information please contact David Lowenstein.

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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

Sandra W Wischow FAQs, Veterans Benefits Claims, Veterans Benefits Legislation Disability compensation, FAQs, VA claims, Veterans Benefits Claims, Veterans Benefits Legislation, Veterans legislation

Secretary Panetta of the Department of Defense and Secretary Shinseki of the Department of Veterans Affairs met on February 5, 2013, their 9th meeting in the last 18 months. They again discussed their commitment to have both departments’ partner in an integrated electronic health record system.

Instead of merely expressing their mutual desire to create a shared electronic health record system, Secretary Shinseki confirmed the following:

“Today’s meeting was about how to get there and, in the short term, we’ve agreed to improve data interoperability to that integrated electronic health record before the end of this year, by standardizing health care data no later than December 2013, creating health data authoritative source no later than September of 2013, accelerating the exchange of real-time data between V.A. and DOD no later than December of 2013, and allowing V.A. and DOD patients to download their medical records, what we call our Blue Button Initiative, no later than May of 2013, and, finally, upgrading the graphical user interface, this thing we call the GUI, to display the new standardized V.A. and DOD health care data no later than December of 2013, all of this focused on an initial operating capability in 2014.”

Whether the target dates will be met is unknown, but the fact that they are taking increased steps toward the creation of a seamless, single integrated electronic health record should be applauded. Bringing together two large bureaucracies on such a large task is monumental. Both Secretary Panetta and Shinseki should be commended for their efforts, and service members and veterans should look forward to the day where medical professionals will have access to all of the patients’ medical records. This will in turn, hopefully, lead to better continued medical care and quicker access to important records.

Additionally, an integrated electronic health record system will also assist with the processing of veterans benefits claims. Often, the adjudication of claims is slowed because VA needs to search for the service medical records. However, once the shared electronic system is up and running, VA will have access to all of the service medical records at the beginning of the claims process.

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A recent story published in the Bay Citizen, a local San Francisco, California paper, indicates that an increasing number of veterans are dying before receiving their benefits. Data obtained by the Bay Citizen indicates that last year the Department of Veterans Affairs “paid $437 million in retroactive benefits to the survivors of nearly 19,500 veterans who died waiting.” This represents a dramatic increase from three years ago, when less than $8 million was paid to fewer than 6,400 survivors. The article reveals that long wait times are to blame for “tens of thousands of veterans being approved for disability benefits and pensions only after it is too late for the money to help them.”

VA Officials cite a change in laws as a significant contributor to the increase in the number of posthumous benefits. In 2008, VA simplified the process for survivors to request compensation. Instead of filing a new claim, survivors may now request to be substituted for the veteran in the pending claim. The individual claiming entitlement to benefits following the veterans death, must submit a written request for substitution within one year of the veteran’s passing. Individuals entitled to benefits under this law include, the spouse of the veteran, unmarried children under the age of 18 or those who have been determined to be helpless children, or dependent parents of the veteran. An individual who bore the veteran’s last medical or burial expenses may also be substituted but is only entitled to the amount actually paid for last medical or burial expenses. 38 C.F.R. § 3.1000.

VA officials also cite the addition of ischemic heart disease, Parkinson’s disease and two types of cancer to the list of diseases presumed to be caused by exposure to Agent Orange as “major catalyst for the rise in posthumous payments.”

The Bay Citizen’s analysis of 18 reports published by the VA’s inspector general uncovered other reasons for the delays. The reports revealed that “auditors found mistakes in more than 1 in 3 high-profile claims they reviewed.” In addition, according to the Board of Veterans’ Appeals 2011 report, the Board found errors in 73 percent of the cases it decided.

It is not just elderly World War II veterans who are passing away while awaiting a decision on their claims. The delays and erroneous denials prevent younger veterans from getting the treatment they need to survive. Whether long wait times are attributable to changes in laws or errors by the Department of Veterans Affairs, the effects of those wait times are unacceptable.

To see the complete article, please follow the link below:

http://www.baycitizen.org/veterans/story/number-veterans-who-die-waiting-benefits/

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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.

David E Boelzner Veterans Benefits Claims, Veterans Benefits Legislation FAQs, VA claims, Veterans Benefits Legislation, veterans employment

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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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.

Nancy L Foti FAQs, Veterans Benefits Claims Disability compensation, Veterans Benefits Legislation, Veterans Disability claims, Veterans legislation

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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