Veterans Benefits Blog

We hear from many of our clients that they have been advised to just withdraw their claims and file new claims, rather than submit additional evidence in support of the pending claim.  Is this a good idea? 

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.

Sandra W Wischow FAQs, Veterans Benefits Claims Disability compensation, FAQs, Veterans Benefits Claims, veterans disability benefits, Veterans Disability claims

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.

David E Boelzner FAQs, Veterans Benefits Claims Disability compensation, FAQs, Regional Office, VA claims, Veterans Benefits Claims, veterans disability benefits

Under VA regulations, a veteran who was exposed to herbicides in service and develops a disease which is listed on the “presumptive list” is presumed to have developed the disease because of his or her exposure to herbicides. For a list of these conditions, see http://www.publichealth.va.gov/exposures/agentorange/diseases.asp.
Generally, VA refers to this as exposure to Agent Orange, although there were also other herbicides used with different names. If your condition is on the list, establishing service connection is a relatively straightforward process.

Suppose your condition is not on the presumptive list? Unfortunately, VA will often deny service connection, without much more explanation than that the disability is not included on the presumptive list. While the Regional Office may stop there, that may not be the end of your claim and you should not necessarily accept this as a final answer.

In a case called Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994), the Federal Circuit Court of Appeals determined that even if a particular condition was not included on the presumptive list for radiation exposure, the veteran could still establish service connection independently – that is, by submitting evidence that his or her disability was as likely as not related to radiation exposure in service. This rule has also been applied to claims involving Agent Orange.

So, let’s suppose you served in Vietnam. You are presumed to have been exposed to Agent Orange, so an “event in service” is established. If you now have one of the diseases on the presumptive list (for example, prostate cancer or diabetes), service connection is relatively simple to establish.

Suppose that instead you have one of the forms of leukemia that is not listed on the presumptive list, such as CML or AML? You can still establish service connection with a medical opinion that the leukemia was “as likely as not” caused by your exposure to Agent Orange. This is certainly a more difficult process than establishing service connection for a presumptive condition, but it can be done.

Bottom line? If your claim is denied because your condition is not on the presumptive list, but there is medical evidence of a link between your condition and Agent Orange, you should file a notice of disagreement and continue to pursue your claim.

The missing element in your claim is nexus – a connection between exposure to Agent Orange and your current illness. You’ll need a medical opinion to establish this connection, so you should discuss this with your doctor. It will help him or her if you do some research yourself – check the literature, to see if you can find any studies linking your condition to Agent Orange, or, more generally, to dioxin. If you provide study data to your doctor, he or she will be better able to provide a solid opinion linking your condition to Agent Orange exposure.

A second thing to look at is whether there is medical evidence linking your condition to benzene. Agent Orange was typically mixed with diesel fuel to distribute it, so exposure to Agent Orange generally would include exposure to benzene. There is also a chemical link between dioxin and benzene. So, don’t limit your research to dioxin – look for medical evidence linking your condition to benzene as well.

Presumptive service connection is not the only way to establish service connection for conditions caused by Agent Orange exposure. You’ll have a harder time establishing the connection for conditions that are not on the presumptive list, but with a strong medical opinion and supporting medical literature, it can be done.

Sandra W Wischow Agent Orange, Veterans Benefits Claims Agent Orange, Gulf War veterans, Persian Gulf and Afghanistan veterans, presumptive service connection, VA claims, Veterans Benefits Claims, veterans disability benefits

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

Similar to the Social Security Administration’s announcement that no cost-of-living adjustments (COLA) will be made to Social Security benefits in 2011, Veterans, their families and survivors will also not see a COLA in 2011. The lack of a COLA increase applies to compensation and pension benefits from the Department of Veterans Affairs.

David J Lowenstein FAQs veterans disability benefits, Veterans Disability claims

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