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

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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 veterans 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

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Willful Misconduct

• Willful Misconduct
• Disabilities that result from a veterans 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

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Status as a Veteran (Contd)

• 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)

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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

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Entitlement Criteria (Contd)

• 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 (Contd)

• 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 veterans military service
• Evidence of a link between the current disability
  and the incident, injury, or event during service

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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 VAs duty to assist lay evidence of vets
  recurrent symptoms may force the VA to provide a
  free VA medical examination to diagnose the
  disability

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Three Criteria for Service Connection (Contd)

• 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
  

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Three Criteria for Service Connection (Contd)

• 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

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Five Ways To Establish a Disability is
Service-Connected (Contd)

• 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

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Five Ways To Establish a Disability is
Service-Connected (Contd)

• Statutory Presumption
• Chronic Diseases
• Tropical Diseases
• POWs
• Persian Gulf Veterans
• Radiation-Exposed Veterans
• Exposure to Herbicide Agents (Agent Orange)

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Five Ways To Establish a Disability is
Service-Connected (Contd)

• 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

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Five Ways To Establish a Disability is
Service-Connected (Contd)

• 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

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TOPIC B Establishing the Appropriate Disability
Rating Percentage
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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 (Contd)

• 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 (Contd)

• 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. . . .

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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

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Additional Compensation

• Additional Compensation for Dependents if at
  least 30 disabled for service-connected
  disabilities
• Monthly rates 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

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Eligibility for Increased or Special Monthly
Compensation

• Increased or SMC above 100 amount
• Aid and Attendance
• In other situations

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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

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Total Disability Based on Individual
Unemployability (Contd)

• 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)

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Total Disability Based on Individual
Unemployability (Contd)

• 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

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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

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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

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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

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Rating in Effect for 5 Years (Contd)

• 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

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TOPIC C VA Claims Adjudication Process
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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

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Adjudication at the VARO (Contd)

• 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

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Adjudication at the VARO (Contd)

• 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

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Administrative Appellate Process

• To initiate an appeal

• Claimant or claimants 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

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Administrative Appellate Process (Contd)

• 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 (Contd)

• De Novo Review by DRO
• Optional review takes place between the filing of
  the NOD and VAs issuance of the SOC
• DRO review must be requested within 60 days after
  date of VA letter offering DRO review

44
Administrative Appellate Process (Contd)

• 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

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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 claimants position

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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

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Substantive Appeal (Contd)

• 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)

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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 (Contd)

• 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 (Contd)

• 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

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Board of Veterans Appeals (Contd)

• Precedent CAVC decisions establishing a rule of
  law must be followed by the RO/BVA
• Also bound to follow substantive manual
  provisions
• All BVA decisions must contain a written
  statement of . . . reasons or bases. . . .
• Must mail a copy to the claimant and rep
• BVA decisions can be appealed to the CAVC

52
Board of Veterans Appeals (Contd)

• Statistical Summary of BVA Dispositions
• 48,588 dispositions in FY 2011
• Allow/grant in 28.5 of cases
• Remanded 44.2 of cases
• Denied 24.2 of cases
• An additional 3.1 were disposed of through other
  means

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TOPIC D Judicial Review of a Final BVA
Decision Denying Benefits
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The U.S. Court of Appeals for Veterans Claims
(CAVC)

• The Veterans Judicial Review Act (VJRA) of 1988
  created the U.S. Court of Veterans Appeals
• There are now 9 judges on CAVC
• www.uscourts.cavc.gov
• CAVC has exclusive jurisdiction to review BVA
  decisions
• Only claimants who do not completely prevail at
  the BVA can appeal

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Jurisdictional Requirements

• Two Jurisdictional Requirements
• A final BVA decision
• A BVA decision remanding a claim to a VA regional
  office is not a final decision
• Timely Notice of Appeal (NOA)
• Must be received by the CAVC or postmarked by
  USPS within 120 days of date on which BVA mails
  its final decision
• Equitable tolling of the 120-day appeal period is
  potentially available

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Jurisdictional Questions

• Motion for Reconsideration/Vacate
• Motion filed at BVA within the 120-day CAVC
  appeal period
• New 120-day CAVC appeal period begins
• The date the BVA receives the claimants notice
  of withdrawal or
• The date the BVA properly sends the claimant
  notice of denial or
• The date the BVA properly sends notice of its
  decision to deny complete relief after having
  granted the claimants motion
• No need to file a protective NOA with CAVC

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Jurisdictional Questions (Contd)

• What happens when an NOA is filed at the CAVC and
  then a Motion for Reconsideration is filed at the
  BVA?
• BVA must obtain the Courts permission to vacate
  decision
• Court will not dismiss the appeal if the NOA
  filed prior to the motion for reconsideration/vaca
  te

58
Jurisdictional Questions (Contd)

• Two Other Scenarios
• If NOA and reconsideration/vacate filed
  simultaneously, jurisdiction will remain with the
  Board
• If the motion for reconsideration is postmarked
  within the 120-day appeal period to the CAVC, the
  claimant will be able to receive Court review of
  the BVA appellate decision

59
Jurisdictional Exception

• Petition for Extraordinary Relief in the Nature
  of Mandamus
• The All Writs Act
• CAVC has jurisdiction to issue an extraordinary
  writ (writ of mandamus) to VA officials
• Can compel VA action
• Based upon potential jurisdiction
• Petitioner must demonstrate (1) a clear and
  indisputable right to a writ and (2) the lack of
  alternative means to obtain the relief sought

60
Single-Judge or Panel Disposition?

• Single-Judge Disposition
• Single-judge decision issued in gt 90 of all
  contested appeals
• Single-judge decisions are not precedential, not
  citable and not published in Vet. App. reporter
• Standards used by screening judge to decide
  whether to decide by single-judge
• Case is of relative simplicity and
• Does not establish a new rule of law

61
Single-Judge or Panel Disposition (Contd)

• Factors contd
• Does not alter, modify, criticize, or clarify an
  existing rule of law
• Does not apply an established rule of law to a
  novel fact situation
• Does not constitute the only recent, binding
  precedent on a particular point of law within the
  power of the Court to decide
• Does not involve a legal issue of continuing
  public interest and
• The outcome is not reasonably debatable

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Scope of CAVC Review

• Scope is based upon Administrative Procedure Act,
  with certain exceptions
• CAVC review is based exclusively on the record of
  proceedings that was before the Secretary and the
  BVA
• Includes relevant documents within the
  Secretarys control prior to the BVA decision

63
Scope of CAVC Review (Contd)

• Under 38 U.S.C. 7261(a), CAVC can
• Decide all relevant questions of law, interpret
  constitutional, statutory, and regulatory
  provisions
• Determine the meaning or applicability of the
  terms of an action of the Secretary
• Compel action of the Secretary unlawfully
  withheld or unreasonably delayed

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Scope of CAVC Review (Contd)

• 38 U.S.C. 7261(a) Contd
• Hold unlawful and set aside decisions of the BVA
  found to be
• arbitrary, capricious, an abuse of discretion, or
  otherwise not in accordance with law
• contrary to constitutional right, power,
  privilege, or immunity
• in excess of statutory authority, or limitations,
  or in violation of a statutory right
• without observance of procedure required by law

65
Standards of Review

• Standard of Review for Findings of Fact
• Court can hold unlawful, set aside, or reverse
  factual finding if it is clearly erroneous
• CE when although there is evidence to support
  it, the reviewing court on the entire evidence is
  left with the definite and firm conviction that a
  mistake has been committed
• Where there are two permissible views of the
  evidence, the fact finders choice between them
  cannot be clearly erroneous

66
Standards of Review (Contd)

• Standard of Review for Issues of Law
• De Novo Review of
• The proper interpretation of a statute or
  regulation
• Whether appellant would be prejudiced by the BVA
  deciding an issue not first decided by the RO

67
Standards of Review (Contd)

• Standard of Review for Application of Law to
  Facts
• Arbitrary/capricious
• Examples
• A challenge to the VAs selection of the
  appropriate diagnostic code for rating
• Whether BVA erred in determining that a prior
  final agency decision did not contain clear and
  unmistakable error (CUE)

68
Standards of Review (Contd)

• CAVC must review the record of proceedings below
  and take due account of
• VAs application of the benefit-of-the-doubt rule
• Rule of prejudicial error
• CAVC may not review or modify the VA schedule of
  ratings for disabilities
• CAVC may review VA regulations and precedential
  opinions of the VA General Counsel

69
Exhaustion of Administrative Remedies

• Applicability of the doctrine to CAVC review
• If the claimant never raised or discussed an
  argument/issue while the claim was pending before
  VA, the Secretary may argue that the Court should
  not consider the issue
• Will the Court hear the claimant arguments raised
  for first time at CAVC level?

70
Exhaustion of Administrative Remedies (Contd)

• Courts have established two rules that are
  favorable to claimants
• BVA is required to address all legal theories
  reasonably raised by the evidence even though the
  claimant did not argue these legal theories
• TDIU automatically considered if
• Claimant has a disability rating that meets the
  minimum schedular criteria for assignment of a
  TDIU rating and
• Evidence under VA control that the veteran is
  unemployable due to service-connected disabilities

71
Exhaustion of Administrative Remedies (Contd)

• CAVC has jurisdiction to consider any issue the
  claimant raises for the first time
• Federal Circuit ruled that this does not mean it
  must consider new issues
• But the Supreme Court ruled in a latter SSA case
  
• Claimant is not required to raise an issue
• Can raise the new issue for the first time in
  federal court and the court must consider it.
• CAVC is applying issue exhaustion principles in a
  manner favorable to claimants

72
TOPIC E Methods for Obtaining Benefits After a
Final VA Denial
73
Major Options for a Claimant

• Major Options
• Reopened claim at the RO
• CUE motion at the RO or BVA
• Filing a Notice of Appeal with the CAVC
• Filing a Motion for Reconsideration with the BVA
• Key Factor - Effective date of benefits
• Date from which benefits will be paid

74
Reopened Claim

• Reopened Claim Two Steps
• STEP ONE Has the claimant submitted new and
  material evidence?
• new - existing evidence not previously
  submitted to agency decisionmakers
• material - if it, by itself or when considered
  with previous evidence of record, relates to at
  least one of the unproven facts necessary to
  substantiate the claim

75
Reopened Claim (Contd)

• New and material evidence does not need to
  relate to every previously unproven element of a
  claim
• VA must determine whether the new evidence, the
  previous evidence of record, and the additional
  evidence that future VA assistance could
  reasonably be expected to provide, raises a
  reasonable possibility of substantiating the
  claim
• VA must presume the credibility of the newly
  submitted evidence

76
Reopened Claim (Contd)

• STEP TWO De Novo Review
• VA must evaluate the merits of the veterans
  claim in light of all evidence, both old and
  new.
• There is no time limit within which a claim to
  reopen must be filed and there is no limit on the
  number of claims to reopen a claimant may file

77
The Following are NOT Reopened Claims

• Claims for increased ratings
• Pension claims for P T disability ratings
• TDIU claims
• Service connection for the POW presumptive
  diseases
• Claims filed after a change in the substantive
  criteria for entitlement to a benefit
• Claim based upon a different factual basis or a
  separate and distinctly diagnosed disease or
  injury than a prior claim

78
Motion for Reconsideration

• May move for reconsideration at anytime
• Motion must be
• In writing
• Filed with the BVA Chairman and include
• the veterans name
• the VA file number
• the date of the Board decision to be reconsidered
• the alleged obvious error of fact or law or other
  appropriate basis for reconsideration

79
Motion for Reconsideration (Contd)

• Chairman may grant reconsideration
• Upon an allegation of obvious error of fact or
  law
• Upon discovery of new and material evidence in
  the form of relevant records or reports of the
  service department
• Upon an allegation that an allowance of benefits
  has been materially influenced by false or
  fraudulent evidence

80
Motion for Reconsideration (Contd)

• If the Chairman orders reconsideration
• BVA decision is vacated
• Reviewed by a reconsideration panel
• Decides the case de novo

81
Revision of Decision Based on CUE

• A successful CUE Claim has the same effect as if
  the decision had been made on the date of the
  prior decision
• File at any time after decision becomes final
• If CUE is present in a VARO decision, each CUE
  theory must be presented to and adjudicated by
  the RO in the first instance
• If CUE is present in a BVA decision, file CUE
  motion with the BVA in the first instance

82
Revision of Decision Based on CUE (Contd)

• Final BVA decisions are subject to CUE
• No time limit to file
• BVAs disposition of the CUE motion is subject to
  CAVC review
• CUE must be based on the record that was before
  the adjudicator at the time of original decision
  making

83
CUE Pleading Requirements

• CUE pleading requirements
• Clearly and specifically allege the error or
  errors of fact or law
• The legal or factual basis for such allegations
• Why the result would have been manifestly
  different but for the alleged error

84
CUE Case Law

• Benefit-of-the-doubt rule does not apply
• At the BVA, only one opportunity to raise an
  allegation of CUE challenging a RO or BVA
  decision on a particular claim
• CUE does not exist merely because there has been
  a favorable change in VAs or courts
  interpretation of a statute or regulation after
  RO or BVA issued decision being challenged

85
Three Kinds of CUE

• CUE in a Finding of Fact
• Claimant must assert more than a disagreement as
  to how the facts were weighed or evaluated
• All of the evidence in the record as it existed
  at the time of the challenged adjudication must
  support the conclusion that the factual finding
  is erroneous

86
Three Kinds of CUE (Contd)

• CUE in a Conclusion of Law
• Must show that the relevant statutory or
  regulatory provisions extant at the time were
  incorrectly applied
• A breach of the duty to assist cannot be a basis
  for a CUE motion

87
Three Kinds of CUE (Contd)

• CUE based on VA failure to sympathetically review
  the record to determine all claims reasonably
  raised by the record
• File a CUE claim challenging the RO decision that
  should have, but failed to infer and decide the
  claim for benefits for a particular disability

88
Success in a CUE Claim

• Once CUE is established, the prior decision is
  revised to conform to what the decision should
  have been
• VA then has a duty to assist prior to assigning a
  disability evaluation for the relevant
  retroactive period

89
CAVC Review of a CUE Claim

• CAVC Review
• Reviews Board decisions on CUE under arbitrary,
  capricious, an abuse of discretion, or otherwise
  not in accordance with law standard
• Certain aspects of a CUE decision receive de novo
  review
• whether a claimant has presented a valid CUE
  allegation
• whether a law or regulation was not applied or
  was applied incorrectly

90
One Further Restriction

• A CUE claim cannot be brought against a final,
  unappealed RO decision where the BVA has
  subsequently reopened the claim, considered it de
  novo, and denied the benefits
• In this case the CUE claim must be lodged against
  the later BVA decision

91
TOPIC F Attorney Representation of a VA Claimant
92
Admission of Attorneys to Represent VA Claimants
before the VA

• Two Steps
• STEP 1 Complete and send VA Form 21a to the
  Office of the VA General Counsel (VAGC). When
  VAGC responds with initial accreditation letter
  ? you may begin to assist a claimant on a VA
  claim
• STEP 2 TO CONTINUE ACCREDITATION Complete three
  hours of approved CLE within the one-year period
  and then an additional three hours for every
  subsequent two-year period

93
To be Recognized by VA as the Representative of a
Particular Claimant

• Complete, sign, and file a POA form (VA Form
  21-22a)
• May not designate a law firm as the
  representative
• POA stays in effect until specifically revoked
• Generally only one representative is authorized
• Newest POA constitutes a revocation of old POA

94
Representative of a Particular Claimant (Contd)

• Split Representation
• Scope of the advocates representation may be
  restricted
• If POA not limited the VA will consider the
  advocate to be the representative on all of the
  VA claims
• Use VA Form 21-22a to limit the scope
• May cause some confusion at the VARO

95
Restrictions on Charging a VA Claimant a Fee

• Preparation of and filing a claim
• No fee may be charged
• If an NOD is filed after June 20, 2007
• Attorney may charge a reasonable fee
• Post-6/20/07 NOD required to charge fees for
  claim to reopen or claim for increase in rating
• Fees may be charged to prepare a CUE claim an
  NOD is not a prerequisite

96
What is a VA Claims Folder?

• Once a veterans files a claim, the VA creates a
  claims folder for the veteran
• All submitted and VA-created materials related to
  ANY of the veterans claims for benefits are
  included in the veterans (one and only) claims
  folder

97
Obtaining the VA Claims File

• Claimants are entitled to one copy of their
  claims file at no charge
• Claimant and/or advocate is able to review the
  claims folder at the RO
• Best way certify-mail a FOIA request to RO for
  copy of all docs in C-file w/copy of VA Form
  21-22a or Privacy Act waiver
• Pursuant to FOIA, the VA must determine within 20
  business days of receiving the request whether it
  will provide a copy

98
Obtaining the VA Claims File (Contd)

• Pursuant to FOIA, the VA must respond within 20
  business days of receiving the request
• Advocate should treat a non-response within time
  period as a denial and appeal ROs refusal to
  provide a copy of a claims file by certified mail
  to the VA Office of General Counsel in DC

99
How to Review a VA Claims File

• Preliminary advice
• Keeping track of relevant information
• Date-of-receipt stamps
• Initial review
• Read the most recent decision
• Check basic entitlement

100
How to Review a VA Claims File (Contd)

• Digging into the C file
• DD Form 214
• Claims for benefits
• Lay statements
• Rating decisions, narrative, rating codes
• Notice of decision
• Appellate issues, Notice of Disagreement
• SOC and SSOCs
• Substantive appeal, Transcript of hearing
• BVA decision

101
How to Review a VA Claims File (Contd)

• Second review
• Service Medical Records (SMRs)
• Entrance examination
• Report of medical history
• Clinical records
• Military medical reports
• Discharge examination

102
How to Review a VA Claims File (Contd)

• Medical Records In General
• Medical abbreviations and terminology
• Impression
• Rule out (R/O)
• Handwriting issues
• Post-Service Medical Records
• VA Examination reports and QTC examinations
• VA outpatient (OPT) records
• VA Medical Center Reports (VAMC)
• Private Medical Reports

103
TOPIC G General Advocacy Tips for Attorneys
Practicing Before the VA
104
Navigating the VA Claims System

• VA work credits
• Bias against lawyers
• Instructing VA to send correspondence only to you
• Easy adjudications
• Pressure to produce by VA managers

105
Navigating the VA Claims System (Contd)

• Institutional bias against certain types of
  claims
• Alcohol and drug use
• PTSD claims
• TDIU claims
• Claims for secondary service connection
• Claims for delayed direct service connection
• Evaluation of back conditions and mental
  conditions
• Where lay evidence is used to support a factual
  conclusion

106
VA Employees

• How to Interact with VA Employees
• The last two numbers in the veterans claim
  number
• Decision Review Officers (DROs) - the very
  informal VA regional office (RO) de novo hearing
• Once your practice is established, if possible,
  ask for a meeting with the Service Center
  Manager