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

VA Form 526 is used to initiate a new claim. Use this form if you wish to file a new claim for disability or pension benefits. VA Form 526b is also used to file claims for increased ratings or to reopen a previously denied claim. Be sure to follow the directions closely. Claims for VA benefits are initially made in writing to your VA Regional Office (“RO”). You can contact your local RO to obtain forms for filing your claim by calling 1-800-827-1000. After developing your case, the RO will send you a decision, called a “rating decision.”

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.

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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

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

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.

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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

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

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

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

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

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On Sunday, January 3, at 7 PM, 60 Minutes will run a segment on delays at the VA in claims processing, titled “Delay, Deny and Hope That I Die.” You can see a preview of the segment at the CBS website, http://www.cbsnews.com/sections/60minutes/main3415.shtml

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“Evidence” is a subject law students devote considerable effort in studying, and it can present complexities even to the best legal minds. But it is quite possible and useful to understand the basic concepts as they relate to the veterans claims system, which is in some ways unique in this regard. You will have a better chance of obtaining benefits from the VA if you understand what you have to provide in the way of evidence to support your claim. It is perhaps worth a reminder that VA does not award benefits based on service to country, however dedicated, or on sympathy for a veteran’s hardship, however difficult; it can award only where evidence shows entitlement.
Evidence and elements of claims
“Evidence” refers to the information, whether from witnesses, written statements, documents or other records, that is considered and evaluated by an adjudicator in making a decision on a claim. Every legal claim has certain “elements” that must be proved, that is, certain points that must be established as true to the adjudicator’s satisfaction before the claim can be won. Thus, in a manslaughter case, for example, the prosecutors must prove that the accused caused a death and did so through carelessness, while in a first degree murder case the prosecutors have to show that the accused not only caused the death but intended or planned for it – different elements for different crimes. In a classic veteran service connection case, the elements that must be proven 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.
Standards of proof
The key facts of a legal claim must be proved to a particular degree of certainty, which varies depending on the type of claim. In a criminal case, the law requires proof “beyond a reasonable doubt,” that is, the decision-maker (often a jury) must be so convinced of guilt that any doubt about it would be unreasonable in light of the evidence. This is a difficult standard of proof; the view of the law is that before a person is deprived of his liberty, or even his life in some states for some crimes, there should really be nearly absolute certainty about guilt. In an ordinary civil case, such as a personal injury claim arising from a car accident or a contract dispute, the standard of proof is simply that the evidence is slightly stronger in favor of the claimant (plaintiff), even if only by a small degree. If the evidence is so balanced that the adjudicator can’t decide one way or the other, the plaintiff has failed to meet her burden and the defendant wins. Lawyers call this standard the “preponderance of the evidence,” from the idea that the evidence “weighs” slightly heavier in one direction.
Benefit of the doubt
When Congress established the veterans claims system, it wanted to make it as friendly to the award of benefits as it could and still require proof that benefits were appropriate. So it passed a law, found at § 5107(b) of Title 38 of the United States Code, which says that when there is an approximate balance of evidence (what lawyers often call “equipoise”) on any point crucial to the decision, the benefit of the doubt is to be given to the claimant. In terms of the evidentiary standards discussed above, this means that a veteran claimant does not have to provide proof as convincing as a civil litigant under the preponderance standard: if the evidence in a civil case were more or less balanced, the claimant would lose, but the veteran is supposed to win in that circumstance. It is equivalent to the old baseball rule: tie goes to the runner.
Practical application; “as likely as not”
How do these abstract legal concepts work in actuality? Let’s say the issue in question is whether a soldier hurt her head in a bad fall in service. She remembers (years later) that she had a headache immediately after the fall. A record of sick bay treatment right after the incident does not mention a head injury but discusses other more pressing concerns: bleeding and a compound fracture of one arm. A follow-up record two days later notes, in addition to the progress of healing of the arm, a small bruise on the forehead. VA might dismiss the veteran’s recollection years later as flawed or possibly self-serving and regard the absence of any mention of a head injury in the treatment note on the day of the accident as evidence that there was no such an injury. But the fact that there were more urgent injuries to address in first aid and the mention of the bruise in a record a couple of days later supports the veteran’s recollection. As lawyer for the claimant I’d argue that this evidence weighs more heavily in the veteran’s favor, that there is a preponderance of the evidence, but, at the very least, this would seem to present an approximate balance: there is some evidence of a head injury and some indicating none occurred, but neither is overwhelming. Under the benefit-of-the-doubt rule, the veteran wins.
NEXT TIME: The special issue of medical opinion evidence.

David E Boelzner FAQs, Veterans Benefits Claims Veterans Disability claims