Representing Veterans Before the VA on Claims for Disability Benefits

1. Representing Veterans Before the VA on Claims for Disability Benefits Presented by Bart Stichman National Veterans Legal Services Program

2. Major VA Benefit Programs • Service-Connected Disability Benefits (“Compensation”) • Service-Connected Death Benefits for qualified survivors of deceased veterans (“DIC”) • (Needs-based) Non-Service-Connected Disability Pension Benefits for war-time veterans • (Needs-based) Non-Service-Connected Death Pension Benefits for certain qualified survivors of deceased war-time veterans

3. TOPIC A: Entitlement Criteria for Service-Connected Disability Compensation

4. Service-Connected Disability Compensation • VA makes up to four determinations in deciding a disability compensation claim: • Is the claimant a “veteran”? If yes, • Is veteran entitled to “service connection” for the claimed disability(ies)? If yes, • Degree of the veteran’s service-connected disability and • The effective date of the award of disability compensation

5. Status as a “Veteran” • Definition of Veteran - A “person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable”

6. Willful Misconduct • Willful Misconduct: • Disabilities that result from a veteran’s willful misconduct are not compensable • “conscious wrongdoing or known prohibited action” • Alcohol and Substance Abuse: • Compensation may not be paid for disabilities the result of primary alcohol abuse or substance abuse

7. Alcoholism and Substance Abuse/STDs • Alcoholism/Substance Abuse as Secondary to a Service-Connected Condition(s): • Compensation payable if abuse-related disabilities are secondary to a service-connected disability • Any disability resulting from that alcoholism or drug abuse, such as cirrhosis of the liver, may also be service-connected • Residuals of venereal disease or HIV are not willful misconduct

8. Status as a “Veteran” (Cont’d) • Character of Discharge Discharge or release must have been “under conditions other than ‘dishonorable’” • Honorable Discharge and General Discharge Under Honorable Conditions → qualifies • Discharge Under Other Than Honorable Conditions (OTH) → may or may not qualify (VA makes individualized “character of service” determination)

9. Overview of Entitlement Criteria • Veterans are entitled to compensation for disabilities incurred in or aggravated during period of active military, naval, or air service • Note - Service department findings are binding on VA for purposes of establishing service in the U.S. Armed Forces

10. Entitlement Criteria (Cont’d) • Example: A battlefield wound to knee and a knee injured while sliding into second base during a baseball game played during active service may both be service-connected conditions

11. Entitlement Criteria (Cont’d) • Assuming “veteran” status there are three basic entitlement criteria: • Evidence the veteran currently suffers from a disability • Evidence of an incident, injury, or event during the period of the veteran’s military service • Evidence of a link between the current disability and the incident, injury, or event during service

12. Three Criteria for Service Connection • First Criterion:Evidence that the veteran currently suffers from a disability • Disability almost always must be diagnosed by a medical professional • Under VA’s duty to assist – lay evidence of vet’s recurrent symptoms may force the VA to provide a free VA medical examination to diagnose the disability

13. Three Criteria for Service Connection (Cont’d) • Second Criterion:Evidence of an event, injury, or disease that occurred during the period of active military service • VA is required to consider lay evidence; no corroborative evidence technically required • Relaxed evidentiary standards for combat veterans

14. Three Criteria for Service Connection (Cont’d) Third Criterion: A link or nexus between the current disability and an event, injury or disease that occurred during the period of military service • There are five major ways to establish linkage; VA must consider each theory reasonably raised by the evidence of record • VA must make reasonable efforts to assist vet in substantiating the claim

15. Five Ways To Establish a Disability is Service-Connected • Directly: Disability was manifested or diagnosed during military service, or an injury, event or incident in service caused the veteran eventually to suffer from a disability • “Delayed Direct Service Connection” • Chronicity and Continuity • Chronic Conditions - A condition shown in service is determined to be “chronic” • Continuity of Symptomatology

16. Five Ways To Establish a Disability is Service-Connected (Cont’d) • Aggravation: worsening of a condition that preexisted service • Temporary or intermittent flare-ups are not sufficient unless the underlying condition permanently worsened • Presumption of Soundness - Unless the service entrance exam indicates otherwise, the VA presumes the veteran was in sound condition when he or she entered the service

17. Five Ways To Establish a Disability is Service-Connected (Cont’d) • Statutory Presumption: • Chronic Diseases • Tropical Diseases • POWs • Persian Gulf Veterans • Radiation-Exposed Veterans • Exposure to Herbicide Agents (Agent Orange)

18. Five Ways To Establish a Disability is Service-Connected (Cont’d) • Secondarily: Demonstrating that a condition is proximately the result of, or linked to, a service-connected condition • Ex: Secondary SC may be established for a mental condition caused or aggravated by a SC physical condition • Likewise, secondary SC may be established for a physical condition caused by a SC mental condition

19. Five Ways To Establish a Disability is Service-Connected (Cont’d) • VA Medical Treatment or Vocational Rehabilitation: • Disability caused by VA medical care or vocational rehabilitation may be treated “as if” it is connected to service • Requires showing of fault or accident

20. TOPIC B: Establishing the Appropriate Disability Rating Percentage

21. Establishing the Appropriate Percentage of Disability • Assignment of Appropriate percentage: • Correct diagnosis and the assignment of the correct “diagnostic code” (DC) • Determining the current symptomatology • Comparing the symptomatology against the appropriate diagnostic code

22. Establishing the Appropriate Percentage of Disability (Cont’d) General Information: • Percentage designed to reflect the average impairment in earning capacity • ≥2 SC disabilities → combined disability rating (percentages are not added arithmetically) • Different disabilities may arise from a single disease entity → separated disability ratings

23. Establishing the Appropriate Percentage of Disability (Cont’d) General Information: • Percentages are set in increments of 10, but may be zero • Functional loss due to pain and weakness has to be separately considered and rated • One disability may be compensated under multiple diagnostic codes→ separate disability ratings -- if “none of the symptomatology . . . is duplicative of, or overlapping. . . .”

24. Disability Payments • Disability compensation is not taxable and is not subject to garnishment or attachment • The level of payments is fixed by statute • The following rates are effective 12/1/2012 • 10% combined rating pays $129 per month • 50% combined rating pays $810 per month • 100% combined rating pays $2,816 per month

25. Additional Compensation • Additional Compensation for Dependents if at least 30% disabled for service-connected disabilities • Monthlyrates for dependents of veterans rated 100% • Spouse $157 • No spouse, one child $105 • Spouse and one child $272 • Each additional child $78 • Dependent parent $126 • Child pursuing post-secondary education $252

26. Eligibility for Increased or Special Monthly Compensation • Increased or SMC above 100% amount: • Aid and Attendance • In other situations

27. Total Disability Based on Individual Unemployability (TDIU) • TDIU - 100% rating even though the service-connected condition(s) are rated less than 100% • Disabled veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities

28. Total Disability Based on Individual Unemployability (Cont’d) • To qualify: • Unable to engage in a substantially gainful occupation (SGO); and • Veteran has: • One SC disability rated at 60% or more; or • Two or more disabilities, one of which is rated at least 40% and additional service-connected disabilities to bring the combined rating to 70% or more; or • Can by assigned an extraschedular rating under 38 C.F.R. § 4.16(b)

29. Total Disability Based on Individual Unemployability (Cont’d) • A SGO provides annual income that exceeds the poverty threshold for one person • Education and occupational history considered • “Marginal employment” should not be considered SGO • TDIU should be provided to all veterans who are unable to secure and follow an SGO due to service-connected conditions

30. Extraschedular Rating for a Service-Connected Disability • Extraschedular Rating • Where a case “presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards”

31. Reevaluation of Disability • VA may choose to reevaluate a service-connected condition • VA may increase or decrease the percentage evaluation • If there is no change, the VA will “confirm and continue” • VA will usually schedule a review examination

32. Reduction in Evaluation • Reduction of an established percentage: • VA must demonstrate the SC condition has improved to the point where a lower percentage of disability should be assigned • Possible in some cases to gauge with non-medical evidence

33. Reduction of a Total Schedular Evaluation • Reduction of a Total Schedular Evaluation: • An examination showing “material improvement” under “the ordinary conditions of life” is required • VA must compare the symptomatology which formed the basis for the previous grant with the symptomatology of the most recent or last exam

34. Reduction of Grant of IU • Reduction of Grant of IU • VA must demonstrate that “actual employability is established by clear and convincing evidence” • If engaged in SGO, TDIU may not be reduced solely on that basis unless the veteran maintains the occupation for 12 consecutive months

35. Rating in Effect for 5 Years • Rating In Effect for 5 Years or More • May not reduce the rating unless all evidence of record shows sustained improvement • Cannot be reduced on examinations reflecting the results of bed rest

36. Rating in Effect for 5 Years (Cont’d) • To reduce a rating in effect for 5 Years: • Must find there has been an improvement • Improvement in the ability to live and work • History of the disability must be reviewed • Reduction must be based upon a thorough current examination • Must find “it reasonably certain that the improvement will be maintained under the ordinary conditions of life”

37. TOPIC C: VA Claims Adjudication Process

38. Adjudication Process at the VARO • The process begins with receipt of a claim • Formal Claim • Informal Claim • Both formal and informal claims must show: • an intent to apply for benefits • an identification of the benefits sought • a communication in writing • Inferred Claim • Claim not directly articulated by the claimant but reasonably raised by the evidence of record

39. Adjudication at the VARO (Cont’d) • ROs are required to notify the claimant of: • Evidence/information necessary to prove the claim • What information/evidence the claimant should provide • What information/evidence VA will attempt to obtain • Claimant has one year from the date of notification to respond with requested information/evidence

40. Adjudication at the VARO (Cont’d) • Then the case is referred to an RO rating specialist • The decision is recorded in a VA rating decision • Notification letter to claimant and “Rating Decision” includes: • A statement of the reasons for the decision • A summary of the evidence considered by the VA • Notice of procedural and appellate rights

41. Administrative Appellate Process • To initiate an appeal: Claimant or claimant’s authorized rep must file a written notice of disagreement (NOD), which must: • Express disagreement with a specific determination • Express desire for appellate review • Be filed with the RO • Within one year of the RO decision

42. Administrative Appellate Process (Cont’d) • Upon receipt of the NOD, VARO must review the claims file and either: • Allow (i.e., grant) the claim; or • Issue a Statement of the Case (SOC)

43. Administrative Appellate Process (Cont’d) • De Novo Review by DRO: • Optional review takes place between the filing of the NOD and VA’s issuance of the SOC • DRO review must be requested within 60 days after date of VA letter offering DRO review

44. Administrative Appellate Process (Cont’d) • DRO may conduct an informal conference or a hearing • DRO may uphold, revise, or reverse, but may not revise or reverse in a manner adverse to the claimant unless the earlier decision contained clear and unmistakable error • Traditional appellate process proceeds as usual after the DRO decision

45. Regional Office Hearings • Regional Office Hearings • Veteran can have a hearing before a DRO or other VA employee • Can be held “at any time” • Hearing officer must “explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant’s position”

46. Substantive Appeal - VA Form 9 • Substantive Appeal • After the SOC claimant must perfect the appeal • File a VA Form 9 • VA Form 9 should be filed with the RO that made the decision being appealed • Veteran has 60 days from SOC or the remainder of the one-year period that began with the date of the mailing of the VA letter of denial - whichever is longer

47. Substantive Appeal (Cont’d) • VA Form 9 should include: • Factual and legal errors in the RO decision • Can raise new theories, expand the issues before the BVA, and present claims for different VA benefits • RO may respond to the VA Form 9 with a rating decision or Supplemental Statement of the Case (SSOC)

48. Board of Veterans’ Appeals • BVA is the final arbiter • Assigned to a single Board member • Jurisdiction over all questions on claims involving benefits under the laws administered by the VA • No jurisdiction over medical decisions • Case is considered de novo

49. Board of Veterans’ Appeals (Cont’d) • A claimant may present new documentary evidence and/or witnesses • BVA must remand to the agency of original jurisdiction if further evidence, clarification of evidence, or correction of a procedural defect is needed

50. Board of Veterans’ Appeals (Cont’d) • Appellant may request an IME opinion • Must show “a complex or controversial medical or legal issue involved in the appeal” • Appellant has a right to a hearing: • Before a BVA member sitting in Washington D.C. • Before a traveling Board member at a RO • A videoconference hearing at a regional VA facility