Veterans Benefits Blog

     Whether a veteran claimant is seeking to establish service connection for a disability or obtain an increase in rating, a medical assessment by a doctor or other health care provider will almost always be vital. To establish service connection, a claimant needs to show a causal relationship between his or her current disability and some event or manifestation of disease in service, which, except in very obvious cases, will have to be established by someone with medical expertise. Likewise, evaluation of the degree of impairment most often requires a doctor’s input.

   Many claims fail at VA initially because the necessary medical assessment is not obtained. Veterans seeking benefits can greatly shorten the agony of a prolonged involvement with VA by dealing with this need early on. Two challenges arise.
   One is locating a doctor willing to provide the assessment. While doctors can be engaged to provide “independent medical opinions,” this is a service that must be paid for by the veteran and is usually rather costly. By far the best option for obtaining an assessment is usually the veteran’s treating physician. Such a doctor will be familiar with the veteran’s condition and will usually want to be helpful to his or her patients. This circumstance may be complicated if the veteran receives her health care from a VA facility. There used to be a VA policy that actually encouraged VA doctors to assist veterans with supporting their claims via medical opinions. That policy was abandoned by VA. But there is no prohibition against VA doctors providing information, including expert assessment, to veterans pursuing claims; some VA doctors seem to believe, mistakenly, that there is such a prohibition.
   If a veteran receives care from a non-VA doctor, or is able to convince his VA doctor to provide help, what is needed is a statement from the doctor in writing that addresses the issue in a way that will be useful in supporting the claim. (The assurance that a written statement will suffice and no live or deposition testimony will be necessary, is often a selling point for doctors.) Again, much waste of time and stress can be avoided if the medical opinion is done right to begin with. Many statements from private doctors are of little help because the doctors do not understand the VA system and do not provide the crucial information.
   Doctors do not think like lawyers, and the claim process is a legal system. One important thing to get straight with the doctor is the VA standard of proof: many doctors, if they’ve had any acquaintance with the legal system at all, will be comfortable stating opinions only to a “reasonable degree of medical certainty.” This is commonly required in civil litigation, but it is not the basis for establishing a fact in a veteran claim. Veterans need only demonstrate that something is “as likely as not” true, so doctors need to understand that if they are comfortable saying that something is just as likely as unlikely, that is enough to support a claim.
   It is also important to have the doctor include the necessary information to make the opinion valuable. She should list or describe the medical data relied on: the records reviewed, examinations performed, and tests administered. She must then provide not only a bald conclusion such as “the arthritis is related to the injury in service,” but also a reason for the conclusion, such as: “arthritis can result from traumatic injury of the type the veteran received in service, and there are no other obvious causes in the medical history, therefore it is as likely as not that his arthritis is related to service.”
   Securing a solid medical opinion can often win a case outright and, at the very least, it can make it more difficult for VA to deny, which is sometimes the essence of the fight.

David E Boelzner FAQs, Veterans Benefits Claims medical opinions, Veterans Benefits Claims, veterans disability benefits

In December 2008, a class action lawsuit was filed in Sabo v. United States on behalf of veterans who (1) served in Operation Iraqi Freedom or Operation Enduring Freedom, (2) were diagnosed with post-traumatic stress disorder, and (3) were discharged from service with ratings of less than 50 percent.
Recently the attorneys representing the veterans and the government reached an agreement, wherein at least 4,300 members of the class action will be entitled to an expeditious review of their disability evaluations as well as a correction of their past and future benefits.

The disability ratings are essential to veterans suffering from post-traumatic stress disorder. A permanent disability rating of 30 percent or higher entitles a veteran to monthly disability benefits for the remainder of the veteran’s life, to free health care for the veteran and his or her spouse for life, and to free health care for their minor children.

Veterans who are eligible for such review are those who were discharged from service between December 17, 2002, and October 14, 2008 and were determined unfit to serve in part due to a diagnosis of post-traumatic stress disorder.

While notices have been mailed to roughly 4,300 veterans, if you did not receive a notice and believe you are a veteran who fits the criteria discussion above, you have until July 24, 2010 to “opt-in” to the class action lawsuit. You should go to www.ptsdlawsuit.com to obtain additional information regarding the lawsuit and information on how to become a member of the lawsuit.

David J Lowenstein PTSD, Veterans Benefits Claims PTSD, veterans disability benefits

If you missed the 60 Minutes segment on VA disability claims processing, you can watch it online, at cbs.com.
http://www.cbs.com/primetime/60_minutes/

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

You can obtain information from the Senate Veterans Affairs Committee page at
http://veterans.senate.gov/

At that page, click on the tab that says “VA Benefits Claims Process.” That provides information on the process itself, as well as information about the Senators who serve on the Veterans Affairs Committee and how to contact them for assistance.

The House of Representatives Veterans Affairs Committee page also includes a great deal of information about VA, benefits available, and how to get help with your claim. That page can be accessed at
http://veterans.house.gov/

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

In a previous blog posting I discussed evidence in veterans cases, including a feature unique to this system, the rule that if evidence is approximately balanced on any given point, the veteran claimant is supposed to be given the benefit of the doubt. In actual practice this favorable rule is not applied because VA determines that the evidence is not balanced. This posting will discuss how that occurs and some hints about developing your evidence to avoid some of the most common reasons for losing claims.
How VA gets around the benefit-of-the-doubt rule
The equipoise standard in veterans cases seems like a highly favorable factor: all one has to do to win is show it’s 50-50. The rub comes in the fact that weighing evidence has a large component of subjective judgment, and by finding some items of evidence more believable than others, VA can conclude that the evidence is not balanced but is one-sided against the claim. In the example in the previous posting about a soldier fall and the immediate treatment records not including any mention of a head injury, the decision-maker might choose to believe that triage doctors are very thorough in noting any symptoms complained of, so the omission of any mention of a head injury would weigh very heavily in this decision-maker’s evaluation of the evidence. To a certain degree the decision-maker is permitted to make these evaluations and the Veterans Court will not disturb the agency’s conclusions if they are plausible.
On the other hand, VA quite often brings completely unwarranted assumptions into its weighing of evidence, such as the notion that if there are no complaints of symptoms or treatment for a condition in medical records, the veteran had no such symptoms or condition; the notion is based on the assumption that all patients always consult a doctor for every condition or complaint they have. It’s not true and it’s not in the evidence, but VA will assume it anyway. These sorts of erroneous evaluations of evidence are often the basis for appeal.
Good evidence
Presenting strong evidence to support a claim is vital to its success. The best way to accomplish this is, first, to know the key facts necessary to prove a claim, what lawyers call “elements.” The three elements of a service-connection claim are (1) an incident in service, i.e. an injury or first manifestation of a medical condition, (2) a current recognized disability, and (3) a causal relation between (1) and (2), i.e. the disability is the same condition or related to the incident in service in some way.
VA is required to send notice to all claimants of what must be proven; it often obscures this information in a blizzard of legal provisions or misleading statements about the duty to assist, but somewhere in the notice letter sent after the claim is filed will usually be a listing of the elements. Ask yourself if you have submitted or can obtain convincing information on each of those elements. (This inquiry can also serve to prompt the threshold question central to any claim: is there a provable entitlement to the benefit sought? VA does not award benefits based on sympathy or veteran hardship; it does not care legally whether you are in financial straits. It can only award based on evidence.)
Especially bear in mind that, whether your claim is for service connection or for increase of rating, it requires medical expert evidence to establish one of the key facts: you must show causal relation with an incident in service for a service connection claim, and you must show degree of severity of the condition in an increased rating claim. If you don’t have such evidence, you need to get it, either through treating physicians or perhaps by pressing VA to get a medical opinion. Having evidence that supports each of the necessary elements is the most important factor in developing a successful claim.
What is good evidence? Anything pertinent to an issue of the claim, that is, one of the crucial facts that must be proven, is relevant evidence and must be considered, but certain qualities affect the weight given to evidence. A few hints:
Direct personal knowledge. Hearsay (something somebody else told you), which is a concern in other types of legal cases, is not strictly taboo in veterans cases, but evidence is unquestionably stronger if it comes from someone with direct personal knowledge of the fact in question. A veteran can, for example, say that he received a certain diagnosis for a condition, but much stronger, more convincing evidence would be the actual medical record in which the diagnosis was stated or a statement from the doctor who made it.
Expert versus lay testimony. Related to the last point is that those to provide evidence must be “competent” to do so. This is a legal term that basically means, possessed of the knowledge, training or experience to reliably say what is being said. Thus, a family member could be perfectly competent to say that a veteran had a limp when she returned from service, but unless that family member is a doctor, he is not competent to say that the veteran had a hip dislocation; the latter requires medical training and judgment. Don’t overlook, though, the capability of lay persons to competently attest to what they can clearly see or perceive.
Corroboration. Although it is supposed to be neutral, VA in fact views anything a claimant says as suspect, because there is always the possibility that the claimant is fabricating or exaggerating something in order to get money from the government. This factor can be offset through corroboration: records or other witnesses who can verify what the claimant is saying. Even a writing made by a claimant can serve to corroborate, if the record was made contemporaneously with the event, e.g. jotting down immediately afterward what happened during a medical exam or an accident. If reliance must be placed solely on a claimant’s recollection, it can be strengthened through detail that increases the plausibility of the story. Needless to say, any hint of falsehood or inaccuracy seriously undermines the value of evidence.
By paying careful attention to whether you have evidence on each of the key facts, and observing the preceding tips for making that evidence as persuasive as possible, you can significantly improve your chances of VA making a favorable decision initially, but even if it doesn’t, you will have vastly improved your chances of a successful appeal and eventual favorable decision.

David E Boelzner FAQs, Veterans Benefits Claims veterans disability benefits

     In a previous blog posting I discussed evidence in general and the benefit-of-the-doubt rule. I also mentioned the three essential facts that must be proven in a service-connection claim: that there was an injury or first manifestation of disease in service, there is a current disability, and the disability is causally related to the event in service. Medical evidence is crucial to two of these three elements. Unless a disability is so obvious that a lay person can discern it, an amputated limb for example, evidence from a medical provider of some type is necessary to establish that there is a physical or mental condition that is disabling. On the important question of medical causation of a disability, whether the current condition is related to something that occurred in service, the evidence is usually in the form of expert opinion from a doctor or other health-care provider. Even if service connection is established, in order to obtain a higher rating for the condition, there must be medical evidence of the severity of the disability.
     In the old days, panels of the Board of Veterans’ Appeals had at least one doctor on them and they evaluated medical issues, but under present law the VA is not permitted to decide medical questions based on its own judgment without expert opinion to support its decision. Precisely because this evidence must generally come from a medical professional, it is often the most difficult aspect of a claim for veterans to establish.

Sources of medical evidence
     It should be noted that medical opinions do not necessarily have to come from doctors. While the strongest opinion might come from a specialist in a particular area, e.g. a psychiatrist rather than a family doctor concerning a mental condition, anyone with medical training can render an opinion. Thus, PTSD diagnoses have been based on the opinions of social workers or trauma counselors who are not MDs. Depending on the issue, a nurse could be at least as persuasive as a doctor, regarding, say, what hospital treatment would have been.
     Diagnosis of a disability and the severity of impairment caused by that disability can frequently be proven by medical records from health care providers who have treated the claimant. Sometimes a treating physician must be asked specifically to comment on the subject, but he or she is usually willing to do so. More challenging, sometimes, is obtaining the opinion that a present condition is related to an event in service, what VA law calls a “nexus” opinion. This type of opinion statement is rather specialized and must be written in a certain way.
     Some medical cause-and-effect relationships are quite apparent: the damage done by a gunshot wound, the scar caused by a laceration, the bone fracture resulting from a trauma. But many such relationships are less clear, such as the relationship between a trauma to a joint and development of arthritis in the joint many years later, or the connection between some frightening or stressful experience in service and later manifestation of mental disease. These relationships are determined through the judgment of medically-trained people.
     Medical causation is often a matter of probabilities. It cannot be determined with certainty, for example, whether a back injury in service caused or hastened the onset of degenerative arthritis in the back many years later, but doctors will often be able to offer an opinion as to the likelihood of a relationship. Thus, one doctor might be of the opinion that too much time has passed for an isolated injury in service to have been the likely cause of arthritis, while another doctor may believe that the trauma to the back made the joints more susceptible to degeneration and thus contributed to causing the arthritis. To support the claim, the veteran needs an opinion that there is a relation to service, at least as likely as not.
      It is because of the benefit-of-the-doubt rule that medical opinion reports in veterans cases contain language using some variation of the phrase “as likely as not.” As long as the probability of causal relation is 50-50, that is, “as likely as not,” the evidence is balanced, and the benefit-of-the-doubt rule tips the decision in the veteran’s favor. That is why you will so often see medical opinions stated in terms of “as likely as not” or something similar.
Doctors familiar with the VA system usually have some notion about how to phrase opinions in this way, but doctors who have not had experience with the VA claims system will not. Indeed, many doctors have some acquaintance with a significantly different standard used in civil litigation: “to a reasonable degree of medical certainty.” Because veterans need only prove elements of their claims as likely as not, i.e. to a 50-50 probability, they do not have to show medical “certainty” to a reasonable degree, which is a more exacting standard. When this is fully explained, a doctor will sometimes be able to see her way clear to offer an opinion that she would not have been able to offer under the stricter standard. That is, a doctor may be uncomfortable, based on existing medical science and literature, saying that Agent Orange exposure caused a particular cancer to a reasonable degree of medical certainty, but may not be so hesitant to say it is at least as likely as not that the defoliant caused the cancer.
     It is also important for doctors writing opinions to support veterans’ claims to bear in mind that something does not have to be a sole cause to be related sufficiently to establish service connection. If the in-service event or condition was a contributing factor to a later disability, that is enough to sustain the claim.
The court that reviews VA decisions has recently expounded more detail about how medical opinions are to be considered by VA. The essential features are that the provider expressing the opinion must have had the appropriate data available, must state clear conclusions based on that data, and must give a reasoned explanation linking the conclusions to the data. Thus, any opinion obtained in support of a claim should contain a statement as to what was reviewed, whether a physical examination was done, what the opinion is, and what the rationale for the opinion is.

NEXT TIME: How VA gets around the benefit-of-the-doubt rule and what you can do to counter this.
 

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

Many veterans pursuing a claim for VA benefits have already been granted Social Security Benefits or are pursuing Social Security benefits for the same disability. A common belief among veterans is that VA should make the same conclusions and/or decision as the Social Security Administration (“SSA”). For instance, many veterans believe that because SSA found them totally disabled, that decision should be binding on the VA, and therefore VA should also find them totally disabled. This is a common misconception. VA is a separate administrative agency form SSA, and therefore is bound by different regulations. Simply put, SSA regulations do not apply to VA claims. See Beaty v. Brown, 6 Vet.App. 532 (1994) (noting that there is not statutory or regulatory authority for the determinative application of SSA regulations to the adjudication of VA claims.) In addition, there are significant differences between SSA regulations and VA regulations. For example, SSA and VA define disabilities differently. Under SSA law 42 U.S.C. § 423(d) and 20 C.F.R. §404.1509, a disability need not be reasonably likely to last a lifetime. VA regulations on the other hand, do require that it be reasonably certain that a disability will continue throughout the life of a person. 38 U.S.C. §1502(a)(1) and 38 C.F.R. § 3.340(b).
While VA is not legally bound to follow SSA decisions, however, it is obligated to take the SSA decisions into consideration when rendering a decision on a claim and provide adequate reasons or bases for why the SSA conclusions are not accepted. Brown v. Derwinski, 2 Vet.App. 444 (1991). Moreover, once VA has been put on notice that SSA documents exist, and those documents are pertinent to the VA claim, VA has a duty to assist the veteran in obtaining the SSA records prior to adjudicating the claim. See Murincsak v. Derwinski, 2 Vet.App. 363 (1992).

Nancy L Foti FAQs, Veterans Benefits Claims veterans disability benefits

VA announced on October 13, 2009, that it will add three more illnesses to the “presumptive list” of Agent Orange related diseases: Parkinson’s disease, B cell leukemias, such as hairy cell leukemia, and ischemic heart disease.

In practical effect, this means that a service person who served in Vietnam during the war and has one of these diseases will find it far easier to establish service connection for these diseases.

For the Department of Veterans Affairs news release, see

http://www1.va.gov/opa/pressrel/pressrelease.cfm?id=1796

Sandra W Wischow Agent Orange, Veterans Benefits Claims Agent Orange, Disability compensation, veterans disability benefits

We frequently hear complaints from our clients that VA is taking a long time to render a decision on a claim for VA benefits. Given the enormous backlog and understaffing from which VA suffers, this is to be expected.

In fact, delay is inherent in the VA system. After a claim is filed, VA must provide notice to each claimant regarding the information and evidence necessary to substantiate the claim. VA must allow claimants one full year for the submission of that information and evidence before it can decide the claim, although it may decide it faster if the claimant indicates that there is no additional information or evidence to submit. Further, VA must obtain certain records possessed by the federal government and other records that are relevant to the claim if adequately identified by the claimant. Also, if necessary to make a decision on the claim, VA must also provide the claimant with a VA examination or obtain a VA medical opinion. VA must then review all of the evidence and determine whether there is enough to decide the claim and, if not, it must continue working to develop that evidence.

Of course, each step in the process takes time. Ideally, VA should also provide claimants with notification of what is happening on the claim, but it does not always do so.

At some point, it becomes clear that VA is not taking any action on a claim. This may become apparent through the passage of an extraordinary amount of time since the last VA action on a claim, or VA may expressly say that it will not take a particular action, despite repeated requests for it to do so.

As a first step for prompting VA to act, sending a letter to VA asking for a status on the claim or asking it to take the next step may work. At a minimum, the letter requires VA to pull the claimants file from the shelf and look at it. This may be sufficient for VA to realize the next step that needs to be taken and to do so.

A single letter however may not prompt VA to act. When this happens, we have a tool we can use to prompt VA to act. This tool is called a “Petition for Extraordinary Relief in the Nature of a Writ of Mandamus.” Or, simply, a writ petition. Writ petitions are separate actions that are filed in the U.S. Court of Appeals for Veterans Claims that assert that the Secretary of Veterans Affairs, through his personnel, is refusing to take an action that legally must be taken. Such refusal can be shown through the passage of time or through other proof that VA is not acting on a claim in the way it is legally required to do. Notably, writ petitions cannot be used as a substitute for an appeal of an unfavorable VA decision, and they cannot be used to force VA to grant a claim that was otherwise denied.

Before filing a writ petition, a letter should be sent to VA threatening to file a writ petition. The letter should be sent by certified mail, return receipt requested, to prove VA received the letter. The letter should state that, unless VA responds within a certain amount of time (for example, 10 days), a writ petition will be filed in the Court.

If VA fails to respond to that letter, then a writ petition may be necessary. Before involving the Court, it must be determined whether there is a legal basis for filing the petition. Such a circumstance would be where VA has expressly stated it will not take a particular legally required action. If delay is the basis of the petition, then that delay must be so extraordinary as to amount to an arbitrary refusal to act. A few months will not generally suffice, but a delay of more than a year may, depending on the circumstances.

A writ petition must provide a facially valid basis for the Court to grant the petition. If so, the Court will require VA to respond to the writ within a short period of time – generally one month.

Ordinarily, VA will then take some action on the claim. That action may be as little as sending a letter to the claimant or it could be as much as a grant of benefits, or whatever the next legally-required action on the claim may be. If so, this will make the writ petition unnecessary (that is, moot), because VA has taken the action it had refused previously to take. Although not technically a win on the petition, VA’s response to the petition by acting on the claim amounts to a successful resolution.

Sometimes, however, VA will defend its actions and continue to refuse to act. In those circumstances, the judges on the Court will decide whether VA’s defense is valid. If not, the judges will order VA to take the action requested. VA is then under a court order to do so.

Although many writ petitions are filed, the Court grants very few. In fact, since the Court’s creation in November 1988, it has granted fewer than five writ petitions. Even though this represents only a small fraction of the number of writ petitions filed, the writ petition remains a useful tool for prompting VA to act.

As always, it is wise to consult with a legal professional before filing a writ petition. This blog is not intended to provide legal advice, and it should not be relied upon as such.

Todd M Wesche FAQs, Veterans Benefits Claims veterans disability benefits