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

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.

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.

The Federal Circuit issued a decision finding, in particular, that “[b]ecause the Veterans Court did not have jurisdiction over [Mr.] Murton’s psychiatric claim, it should not have addressed that claim, and that portion of its opinion cannot be sustained.”

David Lowenstein argued the case before the Federal Circuit on behalf of the veteran, Mr. Murton. Although the decision is nonprecedential, in other words, it lacks binding authority over other cases, the Federal Circuit’s decision has essentially upheld the rule of law that stands for the proposition that the Veteran’s Court lacks jurisdiction to review a claim on the merits when VA has not yet decided it in the first instance.

The purpose of the appeal to the Federal Circuit, or any appeal of an unfavorable decision, is to make what is wrong correct. Having a right to appeal a decision does not necessarily make it proper to appeal. It is recommended that a detailed review of a decision be made before any appeal is filed. Understanding why the decision was made is just as critical as understanding what an appeal would accomplish, if anything.

If you are in need of deciding whether an appeal is warranted in a veterans-related case or are in need of representation, please contact David Lowenstein at http://www.goodmanallen.com/people/bio/david-j-lowenstein, or any other attorney in our veterans practice at http://www.goodmanallen.com/practice-areas/detail/veterans-benefits, or http://www.veteransbenefitgroup.com/

Absolutely not!

This often comes up when you have a claim with missing evidence – let’s say you had a back injury in service and you have a back disability now, but you didn’t have any medical opinion saying that your current back disability is related to your injury in service (a “nexus opinion”).  You filed the claim in 2008 and it’s been at the Regional Office since then.

You talk to a doctor who tells you that he does think there’s a relationship between the two, and he writes you an opinion, explaining why he believes that there is a relationship.  The best thing to do is to submit that opinion to the Regional Office (be sure to keep a copy and to either take it in person or send it certified mail!)

Someone tells you, “Oh, no, things will happen much faster if you withdraw your claim, then submit a new one with all the evidence.”  Here’s the problem – if you do that and are then granted benefits, your claim would be effective as of the date you filed your new claim, not the date you filed your original claim.  So, you could lose as much as 4 years of back benefit payments if you do this.

Under the law, the “effective date” of a claim is generally the later of the day the claim arose (say, when you developed your current back disability) or the date VA received your claim.  If you withdraw the claim filed in 2008 and file a new claim to reopen with your new evidence in 2012, the effective date of your claim will be 2012, not 2008.

The bottom line – it’s always better to continue an ongoing claim when you obtain new evidence than to withdraw the claim and start over.

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.

Celebrating the launch of the Intel Veteran Employment Training (VET) Initiative
Join Intel and the Fairfax County Department of Neighborhood and Community Services and honored guests:
• The Honorable, James Moran, U.S. House of Representatives
• Rodney Lewis, White House Fellow, Office of the First Lady

Intel VET is the result of an innovative community and industry collaboration to serve Washington, DC area veterans. As vital members of our community, we invite you to join us on November 9 for the launch of this important new program.
Date: November 9, 2011
Time: Event will begin at 1:30 p.m.
Location: Gum Springs Community Center
8100 Fordson Road
Alexandria, VA 22306

In support of the White House “Joining Forces” initiative, Intel and Intel Computer Clubhouse at Gum Springs are partnering to offer employment training services to local veterans and their spouses (partners). This new program is designed to provide veterans and spouses with training such as resume writing, skills translation, interviewing, and job search techniques as they transition from a military career to employment in the private sector.
RSVP (Limited Seating): Shirley Maier, Events Manager, shirley.maier@intel.com
Questions? Shirley Maier shirley.maier@intel.com

Proudly Sponsored By:
Employer Support of the Guard and Reserve
Gum Springs Community Center and Computer Clubhouse
Intel Computer Clubhouse Network, a member of the Museum of Science- Boston
Intel Corporation

The following information is provided as a general guideline. Providing the information listed below is not a guarantee that you will win your case, however, if VA doesn’t have this evidence, it is likely that your claim will be denied.

Service connection: In order to have the best chance of getting a claim for service connection granted, you should make sure VA has the following evidence: (1) medical evidence (in writing from a doctor) saying what your current disability is, (2) evidence (from yourself or your service records) showing that you had some sort of injury in service, or medical evidence that you contracted a disease or that your condition got permanently worse in service, and (3) evidence in writing from a doctor that the condition you now have began in service, or, if it began before service, that it was permanently aggravated during service.

If you are applying for service connection for post-traumatic stress disorder (PTSD), a veteran will now be able to establish the occurrence of an in-service stressor through his or her own testimony, provided that: (1) the Veteran is diagnosed with PTSD; (2) a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted confirms that the claimed stressor is adequate to support a PTSD diagnosis; (3) the Veteran’s symptoms are related to the claimed stressor; and (4) the claimed stressor is consistent with the places, types, and circumstances of the Veteran’s service and the record provides no clear and convincing evidence to the contrary.

Reopening a claim: If you have made a claim for service connection for a disability and the claim was denied, but not appealed, the law requires that you “reopen” your claim before VA will consider it again. In order to reopen the claim, you must first submit “new and material” evidence. Basically, this means you must look at the reasons the VA denied the claim the first time, and submit some new evidence that fixes the problem. For example, if your claim was denied the first time because you had no evidence that your current condition was related to service, you will need to submit some evidence that does link your condition to service.

Increased rating: If your claim is for entitlement to an increased rating, you can learn what criteria will be used to assign your rating, by looking at 38 C.F.R. (Code of Federal Regulations) Part 4. (This should be available at your local library or courthouse). If you look at a rating decision, there will be a four-digit code listed next to each condition. These codes, called “Diagnostic Codes” are listed in the CFR. You can see there what you need to show in order to get a higher rating for your condition. The best thing to do to prove your case is to document (preferably through medical evidence) that you have the symptoms listed for the higher rating.

Total disability due to individual unemployability: To receive unemployment benefits from VA, you must have evidence that your service-connected disabilities, by themselves, make it so that you can’t work or that even if you can work a bit, you can’t do so in such a way as to make income to meet the poverty line. The best way to document this is to have your doctor explain that you can’t work as a result of your service-connected disabilities by themselves. Just showing that you can’t work or that you can’t find work is not enough to receive this benefit.

Brenda Keener is a paralegal with Goodman Allen & Filetti.

Traditional Appeals Process
This process involves a review of the claims file and any additional information that is submitted. The reviewer can hold a formal hearing with the veteran to gather additional evidence. However, he is only allowed to change the original decision in two instances, (1) new evidence has been submitted, or (2) the original decision was based on clear and unmistakable error. This means the original reviewer made a mistake. The decision can also be changed based on a difference of opinion, BUT the new decision must be approved by the Central Office.

The RO will then issue a Statement of the Case (SOC) explaining the decision. In order to continue to appeal to the Board of Veterans Appeals, you must return the enclosed Form 9 with 60 days of the mailing of the SOC, or within one year of the original decision, whichever is later.

DRO Review Process
This process also involves a review of the entire claims file and any new information that is submitted; however, the DRO considers the evidence without deference to the original decision made by the RO.

DROs can hold formal hearings, just like in the traditional review process, but they are also allowed to hold informal conferences with the veteran or his representative to discuss the appeal.

If the DRO does not award a full grant of benefits, a Statement of the Case (SOC) will be issued and the appeal process will continue in the same way as the traditional appeal process explained above.

Why Should You Choose a DRO Review?
1. DROs are senior level RO employees; therefore, they are more experienced than the average VA decision makers that denied your original claim.

2. DROs have broader powers than regular reviewers. This includes the power to change the original decision without approval from the Central Office.

3. DROs have the ability to hold informal conferences with veterans to discuss the facts or evidence.

4. The DRO process takes, on average, a month longer than the traditional appeals process. This is the time period between when you file a NOD and when you receive a SOC. However, a study by the U.S. Government Accountability Office (GAO), found that you are more likely to receive at least partial benefits if you choose the DRO process instead of the traditional appeals process.

5. According to the same report, the average wait time for decision by the Board of Veterans Appeals is more than 1,000 days from the time a NOD is filed. The average wait time for a decision by a DRO is only 266 days from the time the NOD is filed. Therefore, if you receive a partial grant from the DRO, you will begin receiving your benefits much faster than if you appealed directly to the Board.

6. If your claim is not granted by the DRO, you can still continue your appeal to the Board without having to start the process over again.

Overall, the DRO review process gives veterans an additional chance for a favorable decision, is more likely to result in a grant of benefits early on, provides an opportunity to speak directly with the individual making the decision, and does not forfeit the right to appeal to the Board of Veterans Appeals. There is no real downside to choosing this option, and it may end up being more beneficial.

You can find the complete report by the GAO at:
http://www.gao.gov/new.items/d11812.pdf

Krystle D. Waldron, J.D. is a May 2011 graduate of William and Mary Law School.