Veterans Benefits Blog

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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On December 19, 2011, the United States Court of Appeals for the Federal Circuit (Federal Circuit) issued a decision in Murton v. Shinseki , 2011 U.S. App. LEXIS 25123, 2011-7058 (Dec. 19. 2011) (nonprecedential) vacating that part of the United States Court of Appeals for Veterans Claims (Veterans Court) decision that addressed the merits of the veteran’s psychiatric disability claim.

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/

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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.

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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.

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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

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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.

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