Veterans Benefits Blog

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.

David E Boelzner FAQs, Veterans Benefits Claims FAQs, filing a claim, Veterans Benefits Claims, Veterans Court, veterans disability benefits

Recently, the U.S. House of Representatives passed a budget amendment that, if enacted into law, would essentially invoke a seven-month moratorium on payment of all legal fees by the government to those who successfully litigate a matter against it. Such payments are currently authorized under the Equal Access to Justice Act (EAJA).

In 1980, Congress established EAJA in response to its concern that people may be deterred from seeking review of, or defending against, unreasonable governmental action because of the expense involved in suing the government to vindicate their rights. Congress expressly made payment of legal fees under the EAJA available to veterans and their dependents who hire private attorneys to represent them at the U.S. Court of Appeals for Veterans Claims and if they win the case against the government in that court.

If the budget amendment becomes law, EAJA fees would be temporarily suspended. Because there does not appear to be a distinction between those people who would be affected by the broad moratorium, veterans and their dependents would likely suffer because attorneys rely on reimbursement of reasonable attorney fees under EAJA in order to provide low or no cost services. If the attorneys are not awarded attorney fees in successful appeals, it is unlikely that they would agree to represent veterans and their dependents before the court. This will negatively affect those who have been unfairly denied benefits by VA and need the expertise of an attorney skilled in the area of veteran’s benefits law to litigate the matter at the Court.

To see the EAJA deliberations, check out http://www.scribd.com/doc/49535676/EAJA-Deliberations

David J Lowenstein Veterans Benefits Claims, Veterans Benefits Legislation Veterans Benefits Claims, veterans disability benefits, Veterans Disability claims, Veterans legislation

Many veterans know of the existence of VA’s “benefit of the doubt” doctrine, but question how the doctrine is applied in a case.

I. What is the “benefit of the doubt” doctrine?

VA claimants have the burden to prove their claim to the VA, that is, when making a person makes a claim to VA that person has the responsibility to present evidence that will establish entitlement to the benefits that person is seeking. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA will give the “benefit of the doubt” to the claimant.” 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2010); see Gilbert v. Derwinski, 1 Vet. App. 53, 55 (1990) (the benefit of the doubt standard is similar to the sandlot baseball rule that the tie goes to the runner).

II. Does this mean the VA has to always give me the benefit of the doubt and therefore believe all of the evidence I submit to support my claim?

No, as the adjudicator of the claim, VA has the duty to weigh the evidence and determine whether that evidence if probative or not. Sometimes VA will find some evidence has more probative weight than other pieces of evidence. The “benefit of the doubt” doctrine only comes into play when two pieces of evidence are of equal weight, in that instance, VA must give the favorable evidence the “benefit of the doubt.” For example, let’s say that a veteran is trying to establish service connection for a right knee condition that developed due to an in-service fall. VA affords him an examination where the examiner reviews his claims file and determines that the condition is not related to service. The veteran then obtains a medical opinion from his doctor that is also based on a complete review of his claims file, and provides a thorough medical opinion and rationale as to why his right knee condition was caused by service. In that instance, having all things be equal between both examinations, VA should give the “benefit of doubt” to the favorable medical opinion and thus probably grant the claim.

Here’s one way to look at when the benefit of the doubt applies and when it doesn’t.

Let’s say that Joe Veteran is trying to get service connection for the arthritis in his back. Joe had an accident in service in 1968 when he fell out of the back of a moving jeep, hitting his low back. Now, 40 years later, he has arthritis in his lumbar spine and believes that his low back problem was caused by the Jeep accident. In order to be service-connected, VA rules require that there be a medical opinion that relates the currently diagnosed disability to the Jeep accident. Here, Joe gave his service medical records to his doctor who wrote an opinion saying that the current arthritis is likely due the in-service accident. VA then gets its own opinion; but its doctor says that the back problem is more likely caused by old age. In this case, there are two pieces of evidence both addressing the same question—was Joe’s Jeep accident the cause of the arthritis 40 years later. If there’s nothing about either opinion that makes it better than the other, VA is required to give the benefit of the doubt to the veteran and accept the favorable opinion.

Now, let’s change the facts around. In this case, Joe has explained that he believes the Jeep accident caused the current back problems, saying that this was the only injury he ever had to his back. In this case, however, Joe doesn’t get a medical opinion from his doctor and VA doesn’t get one either. Here, there’s no medical opinion at all answering the question about whether the arthritis was caused by the Jeep accident. Because there’s no favorable opinion, there’s just not enough evidence to allow VA to grant the claim, and no evidence to which the benefit of the doubt rule can apply.

Nancy L Foti FAQs, Uncategorized, Veterans Benefits Claims Veterans Benefits Claims, veterans disability benefits

A key part of VA benefits for many veterans is access to free VA medical care for any condition that is service connected or, for certain veterans, additional health care for additional disabilities for themselves and health care for spouses and dependents.

On January 6, 2011, VA released its 2010 Veterans Health Administration Facility Quality and Safety Report. In the lengthy report, VA discusses the quality of the facilities, staffing, and care provided at each VA medical center and across the entire VA health system. It includes many metrics that can be used to compare the care provided from one medical center to another, including treatment for specific conditions, such as diabetes mellitus, and overall satisfaction with both inpatient and outpatient care.

The report card can be found at http://www1.va.gov/health/HospitalReportCard.asp

Todd M Wesche Veterans Benefits Claims, veterans health care Add new tag

Last month the Department of Veterans Affairs (VA) announced the testing of a new procedure to obtain veterans’ medical records more quickly. Secretary Eric K. Shinseki stated in a news release that the VA is exploring a procedure that employs a private contractor to obtain veterans’ private medical records and transmit them to the offices processing the veterans’ claims. But, how does adding yet another individual into the chain of claims processing achieve the goal of moving a veteran’s claim along more quickly?

The Secretary says he hopes these new procedures will decrease the time it takes to obtain a veteran’s private medical records by one month. Currently, on average, it takes private medical records approximately 40 days to reach the VA. The private contractor’s sole scope of work is to contact private physicians, obtain the records, scan them into a computerized system, and transmit them to the VA office processing the claim.

Currently, VA employees are tasked with those responsibilities, along with reviewing claims files, obtaining government agency records, and many other functions. The hope is that the private contractor will relieve VA employees of the medical records chore to enable them to use their time processing claims. The Secretary’s aim is to decrease the time it takes to decide a claim by “freeing up” the VA employees and by obtaining private medical records more quickly.

How can you help make the process move faster on your end?

When filing a claim for Veterans Benefits, the VA is more than likely going to review your private medical records. You can help by obtaining these records on your own. Your physician will likely require you to fill-out and sign some sort of records release. The faster you sign and return the release form permitting the physician to give your records to another individual (or organization like the VA), the faster the VA will receive your records and decide your claim. Also, if you obtain your own records and provide them to VA, make sure you tell VA that you’ve already gotten all the records, so that VA won’t delay your case by requesting the records again.

To read the entire news release, please follow this link:

http://www1.va.gov/opa/pressrel/pressrelease.cfm?id=2015

Jessica Mast Flage FAQs, Veterans Benefits Claims VA claims, Veterans Benefits Legislation, veterans disability benefits, Veterans Disability claims

On June 1, 1954, President Dwight D. Eisenhower signed a bill proclaiming November 11th as Veterans Day, which was formerly known as Armistice Day. Veterans Day was established to recognize and honor the men and women who have served in the United States Armed Forces. Although Veterans Day marks a day in which we remember those who died during service, it is designed to thank and honor all of those who have served and continue to service.

Today, on November 11, 2010, Veterans Affairs Secretary Eric Shinseki discussed the sacrifices made by men and women who have served in the United States military and the difficulties many of them face. Below is a link to the actual discussion and a summary of the key points addressed.
http://www.npr.org/blogs/thetwo-way/2010/11/11/131239678/veterans-day?ft=1&f=1001

Goodman, Allen & Filetti would like to thank all of the men and women who have and continue to serve our country.

David J Lowenstein Veterans Benefits Claims, Veterans Benefits Legislation Allen & Filetti, Goodman, Veterans Day, veterans disability benefits

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.

David E Boelzner FAQs, Veterans Benefits Claims VA claims, veterans disability benefits

A question we often hear from our clients regards what happens to a claim that has not yet been decided or is still pending at his or her death. Fortunately, Congress recently changed the rules regarding how the Department of Veterans Affairs (VA) handles such claims. The rules are less clear for claims that are on appeal to the U.S. Court of Appeals for Veterans Claims.

Congress now allows for survivors of the person filing a claim (known as a “claimant”) to pick up the claim where the claimant left it upon his or her death if the claim is pending before VA at either the VA regional office (or Agency of Original Jurisdiction) or the Board of Veterans’ Appeals. This process is known as “substitution.” In effect, the survivor is permitted to continue pursuing the original claim at exactly the same point where it was upon the claimant’s death, and this allows VA to pay to the survivor any benefits that otherwise would have been paid to the original claimant. The law permitting substitution is at 38 U.S.C. § 5121A.

In order for VA to allow substitution, there are some basic requirements that must be met. First, a survivor must ask VA to be substituted for the deceased claimant within one year of death. If this deadline is missed, substitution will not be permitted. Second, the survivor must meet certain criteria to be deemed eligible. Generally, the survivor must be the deceased claimant’s legal spouse, a child, or a dependent parent. The full list of eligible persons is available at 38 U.S.C. § 5121(a).

The Court of Appeals for Veterans Claims has now decided that a survivor may be substituted in a case that is pending at the Court at the time of the claimant’s death.

Todd M Wesche FAQs, Veterans Benefits Claims, Veterans Benefits Legislation Veterans Disability claims

UPDATE

The proposed new PTSD regulations are now in effect. The text of the regulations can be found at http://frwebgate1.access.gpo.gov/cgi-bin/PDFgate.cgi?WAISdocID=K23HwW/0/2/0&WAISaction=retrieve

VA’s fact sheet about the changes can be found at http://www.va.gov/PTSD_QA.pdf

Keep in mind that this does not entirely remove the requirement that PTSD stressors be corroborated – only in specified circumstances, involving situations of hostile military or terrorist activity. The asserted stressor must be consistent with the conditions of the veteran’s service. The new rules also require that a VA examiner give the opinion that the assereted stressor would be sufficient to cause PTSD.

PROPOSED REGULATIONS AUGUST 2009
VA has proposed a change to the PTSD regulations that will eliminate the requirement that a stressor be corroborated if it arises out of “fear of hostile military or terrorist activity.” There will also be a requirement that a VA psychiatrist or psychologist give an opinion that the stressor is adequate to support a diagnosis of PTSD and that the veteran’s symptoms are related to that claimed stressor.

If these conditions are met, the veteran will not have to provide additional evidence to show that the stressor occurred, as long as the stressor is consistent with the places, types and circumstances of the veteran’s service, and as long as there is not clear and convincing evidence that the stressor did not take place.

The PTSD regulations already provided that no additional evidence was necessary if it was a combat-related stressor and the veteran served in combat.

What does this mean in practical effect? If you served in an area where there was “hostile military or terrorist activity” taking place, you no longer have to prove that you were “in combat.” Many times, the combat requirement was used to require additional evidence if the veteran served in a combat area, such as Vietnam or Iraq, but did not have a “combat” MOS. If your official MOS was, let’s say, “aircraft mechanic,” it could be very difficult to convince VA that your stressors were combat related and that you served in combat.

Under the proposed new regulation, VA is now recognizing that other stressors, such as “constant vigilance against unexpected attack, the absence of a defined front line, the difficulty of distinguishing enemy combatants from civilians, [and] the ubiquity of improvised explosive device” are characteristic of “deployment to a war zone,” regardless of whether you were directly serving in a combat role.

It’s important to understand what this doesn’t change – additional evidence will still be required to show that a stressor occurred, if it didn’t take place in a war zone and was not related to “fear of hostile military or terrorist activity.”

The proposed rule, along with VA’s explanation of the rule, can be found at

http://frwebgate1.access.gpo.gov/cgi-bin/PDFgate.cgi?WAISdocID=207646362677+5+2+0&WAISaction=retrieve

Sandra W Wischow PTSD, Veterans Benefits Claims PTSD, veterans disability benefits

In late May 2010, VA Secretary Eric Shinseki prepared a letter to the leaders of the House and Senate requesting that his draft legislation entitled “Veterans Benefit Programs Improvement Act of 2010” be considered and enacted. The purpose of the draft bill is to improve (1) VA’s compensation and pension programs, (2) the timeliness and efficiency of VA’s adjudication of claims and appeals, (3) VA’s loan guaranty system, (4) vocational rehabilitation and education benefits, and (5) Veterans Group Life Insurance participants. Details of the particulars with respect to the suggested changes and reasons for them can be viewed at: http://www.vawatchdog.org/10/nf10/nfmay10/may10files/SecyLegislation.pdf
While it is clear that many of the proposed changes appear good for veterans, there are several items that have surfaced that may negatively impact the legal representation of veterans.
Under Title II, Section 206, which concerns decisions of the Board of Veterans’ Appeals, the legal standard of what the Board must include in its decisions may change. VA is concerned that more than half of the claims appealed to the Veterans Court result in a remand back to the Board due to an inadequate statement of reasons or bases. The comments to the proposed change note, among others, that while some remands are necessary, many remands based on reasons or bases do not benefit the claimant. Therefore, changing the statutory language from reasons or bases to “a plausible statement of the reasons for the Board’s ultimate findings of fact and conclusions of law” would reduce the number of remands.
Under Title II, Section 207, which addresses the definition of prevailing party status for purposes of entitlement to Equal Access to Justice Act, i.e., reimbursement of attorney fees, the proposed language is alarming. If the language is adopted, attorneys who represent veterans before the United States Court of Appeals for Veterans Claims would only be eligible for reimbursement of attorney fees if, after securing a remand or reversal at the appellate level, the veteran ultimately is awarded a monetary or other benefit at the administrative level. The language further allows the Court and the Secretary to prescribe rules that would allow the Court to retain control over all remands, and only upon a showing that the veteran was awarded benefits, could the attorney be entitled to reimbursement of fees.
If either of these proposed changes become law, it is likely to negatively impact the number of attorneys willing to represent veterans at the court level. If attorneys know that the chances of recovering attorney fees is limited and that it will be that much more difficult to secure remands, the Veterans Court will likely see many more unrepresented claimants.

David J Lowenstein FAQs, Veterans Benefits Claims, Veterans Benefits Legislation Veterans Benefits Claims, Veterans Benefits Legislation, veterans disability benefits