Veteran Affairs effective date appeals

There are many federal directives on the effective date of a VA claim. This is a complex area and you may need an attorney if you appeal to the Board of Veteran Appeals (BVA) on you effective date of a claim.

Before you submit an appeal for an effective date change, become familiar with these federal directives and court cases,

Directives and rulings:

1. 38 CFR, Part C, §3.156(b) and §3.156(c)(3) & (4)

2. 38 C.F.R. § 3.400 (o)(2) and (b)(2)(i)

3. McGrath v. Gober, 14 Vet. App. 28, 35 (2009)

4. DeLiosio v. Shinseki, 25 Vet. App. 45, 56 (2011)
5. 38 U.S.C. § 5110 9b)(2) and (b)(3)(A)

6.  Ingram v. Nicholson, Cause No. 03-2196 (May 23, 2007)

7. Clemons v. Shinseki, 23 VET.App. 1, 5 (2009).

8. Harris v. Shinseki, no. 2012-7111 (Fed. Cir. Jan. 4, 2013)

9. 119 congressional record, 17,571(1973). Pub L no. 93-177

11. Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006) 

 

Askniod wrote an excellent article on this topic.   In summary: 

. . . [o]nce an effective date has become final due to the failure of a claimant to appeal it, a claimant’s only recourse is to have the final decision revised on the grounds of clear and unmistakable error (CUE).

This means if you receive a VA regional Office (VARO) ruling denying your claim, you have one year to appeal it to the Decision Revue Officer (DRO) or the BVA. if you fail to do this, the effective date issue becomes moot. 

However, if the VA regional Office (VARO) fails to issue a Supplementary Statement of Case (SSOC), the Case is still considered open or unfinished under 38 CFR §3.160. 

An SSOC denies the claim and provides  the VA's rationale for the denial. It also provides procedures for appealing the DRO or the BVA. 

Appeal to BVA on a VA Form 9. There was a new 21-series form for DRO appeals, too, but Rightardia was not able to find any information on that form. You should not use a Form 9 to appeal to the DRO. 

Say that you are representing yourself pro se and the VARO sends you a ruling, but forgets to issue an SSOC. essentially, you were not advised or your right to appeal and the VA failed its Veterans Claim Assistance Act (VCAA) duty to assist. 

This is a worst case scenario for the VA if you file pro se because they can not blame a veteran service officer (VSO) form the DAV or the Amvets for the oversight, 

The bottom line is if the VA failed to advise you of you right to appeal, the claim is considered open or unfinished from the the day the original or subsequent related claims for the medical condition were submitted, 

Whats in your wallet could be a lot of VA government money if the VARO failed to issue an SSOC several years ago. 

Check your c-file and home files for old SSOCs if you have opened a new claim for a medical condition that was denied in the past.

source: http://asknod.wordpress.com/2012/12/03/bva-earlier-effective-date/

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Filing a new VA claim

Many veterans get a letter from a doctor and go the a VA regional office (VARO)  and use a Veteran Service officer (VSO) from the AMVETS or DAV to file the claim. Chances are the initial claim will be rejected. In fact even after a second level review by the Board of Veterans Appeals, only bout 30 per cent of claims are approved. About 15 per cent of VA claims are fraudulent.  But what about the other 50 per cent that are rejected?

The VARO would probably say that most rejected but legitimate claims are not fully developed. The VARO wants fully developed claims (FDC). 

You can increase your chances by filing the claim pro se.  This means advocating on your own behalf before a court or board, rather than being represented by a lawyer or a VSO.

One big advantage of filing pro se is that the VA has to give your claim extra considerations because you did not have professional representation.

You do need some tools to file a claim. If you don't have these tools, you should probably work the claim through one of the service organizations or through the VA's Veteran Center. 

Rightardia recommends you have or can get access to the following:

1. The Internet. You can use the public library's if you don't have this at home.

2. A PC with any current operating system. You will need this to type letters, fill out the online VA claims (VONAPP) and respond to VA requests. 

3. MFC (multi-function) laser printer. Useful for printing, faxing and scanning. A color inkjet printer has limited use and prints far more slowly.

4. Software: You need a word processor like MS Word or Libre office aka Apache Open Office that is free. Both Libre and Open Office have both Windows and Linux versions. You can upgrade Libre office with the Language Tool plug-in that provides grammar checking. There is also a free medical dictionary for Libre/Open Office.

5. A file cabinet with both incoming and outgoing logs. All incoming and outgoing documents should be numbered and filed in chronological order. Use to the log to quickly locate documents you need to enhance or reference in your claim. 

A program such as Windows PDF Nitro that can edit DBQs and create portable document files (PDF). The PDF is a government standard and that is why most government forms are in PDF format. PDF Nitro will allow you to edit existing PDFs or save a DBQ is PDF format.

You cannot otherwise edit a PDF file such a Disability Benefit Questionnaire (DBQ). However, without a program like Adobe Acrobat, not the reader,  or PDF Nitro, you will not be able to edit existing PDFs or save them. You can also edit PDF files in Linux with graphics programs, but it is time consuming.

Before you file the claim, you should read two books. The ASKNOD  VA Claims by Gordon Graham and Claims Denied by John Roche. The latter will help you file the claim and the Asknod book will be very useful if you have to file an appeal.

Next try to define your claims in terms that the VA can understand. Check 38 CFR, Part C Subpart B to find the disability codes fit your condition (s). See http://www.benefits.va.gov/warms/bookc.asp

For example if you have diabetes mellitus, DC 7913 applies: 

7913 Diabetes mellitus

Requiring more than one daily injection of insulin, restricted diet,

and regulation of activities (avoidance of strenuous occupational

and recreational activities) with episodes of ketoacidosis or

hypoglycemic reactions requiring at least three hospitalizations per

year or weekly visits to a diabetic care provider, plus either

progressive loss of weight and strength or complications that

would be compensable if separately evaluated 100

Requiring insulin, restricted diet, and regulation of activities with

episodes of ketoacidosis or hypoglycemic reactions requiring one

or two hospitalizations per year or twice a month visits to a diabetic

care provider, plus complications that would not be compensable

if separately evaluated 60 

 

Requiring insulin, restricted diet, and regulation of activities 40

Requiring insulin and restricted diet, or; oral hypoglycemic agent

and restricted diet 20 

 

Manageable by restricted diet only 10

Note (1): Evaluate compensable complications of diabetes separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process under diagnostic code 7913.

Note (2): When diabetes mellitus has been conclusively diagnosed, do not request a glucose tolerance test solely for rating purposes.

Pay close attention to the notes, too. Show the DC examples to your physician. Ask him or her what they think you should be rated for.

With the Affordable Care Act,  you should be able to get medial insurance and help from private practice physicians. In general, they will be the strongest advocates for you if you have a clear cut case. If a private practice doctor won't help you, fire him or her and find one who will.

You have the option of submitting a letter signed by your physician or asking the physicians to complete a DBQ. Rightardia strongly recommends the DBQ because it will provide more information to the VA than is often possible in a letter. A well written DBQ may also preclude a compensation and pension (C&P) exam.You can find the DBQs at http://benefits.va.gov/COMPENSATION/dbq_ListByDBQFormName.asp.

It is important that the physician indicate in the DBQ that he/she reviewed the claimant's service medical records (SMR). The physician can check a check box in some DBQs to show he performed a records review. The DBQ also needs to have a nexus statement added that connects the medical conditions to the claimant's time in service.

Here is the part of  DBQ for Diabetes Mellitus:

 Many vets make the mistake of submitting multiple claims that are unrelated to each with the typical vet submitting 20 different claims, hoping some will stick. It is far better to push the claims that have the most impact. For example, you might get 10 per cent for service-connected prostate condition and 50 per cent for sleep apnea. Clearly the latter condition is more important. Use the 38 CFR to help identify and prioritize medical conditions.

Are there any relationships between diabetes mellitus and other medical conditions you have? Are there secondary conditions such as neropathy, renal dysfunction and retinapathy? Diabetes can cause cardiac conditions such as hypertension, too.  Try to relate your medical conditions as primary and secondary conditions in your claim.

Have your spouse review the initial claim.  This can be important  if your spouse or other family member is a stronger writer. Make the claims process a family affair. A VA disability award and retroactive pay can greatly improve the economics in your family.

At this point you are ready to file pro se. You have read the two books, you have found DCs that correspond to you medical complaints and you have DBQs or letters from you physicians on your medical conditions. You have connected your primary and secondary medical conditions which are often referred to as residual conditions.

You have all the tools you need for further research and for the preparation of additional documentation.

You can file VA Form 21-526 (Veteran's Application for Compensation or Pension) in the VARO's Veterans Center or file a VONAPP online. See https://vabenefits.vba.va.gov/vonapp/main.asp.

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Why the VA sucks

I posted the initial article on the FB page, "The VA is lying."

The VA approves about 15 per cent of its claims overall. If you appeal to the BVA and prevail, about 30 per cent of VA claims make the cut.

If you appeal the BVA ruling to the USCAVC, about 70 per cent of those filings are overturned.. However, only a small percentage of vets who lose a BVA appeal, go to the USCAVC.

About 15 per cent of VA are fraudulent. This means when the dust clears, about 55 per cent of vets just give up. Perhaps the claim is poorly written or lacks appropriate medical documentation. Most vets just tire of the run-around.

If the VA makes an award, the award comes out of the local VA claims office's (VARO) hide. This is really a conflict of interest and may explain why the VA is so stingy.

About 40-45 percent of claims from Iraq and Afghan vets are being approved. Not bad.

However, if you are Vietnam era vet, it's about 2-4 per cent.

Is this a dual standard for vets? You betcha!

Essentially if 100 vets were to file claims, about 20 would be approved at the the VA Regional Office (VARO) level. If you are an Iraq and Afghan vet, a Purple Heart recipient, paralyzed or paraplegic, your odds improve. 

If you appeal to the Decision Review Officer (DRO) or the Board of Veteran Appeals (BVA), another 20 per cent of those appellants get approved. 

Keep in mind the DRO is bound by it VA Manual, M21-1. It does not consider precedent rulings from the United States Court of Appeals for Veterans' Claims (USCAVC) , the 38 CFR that is the VA directive or 38 USC that is public law.

The BVA will consider USCAVC precedent rulings that require a three panel judge, 38CFR and 38 USC. The BVA is legal administrative proceeding. the BVA will also consider the opinions of private practice physicians in letters and Disability Benefit Questionnaires. 

The VARO will gloss over private practice evidence if it conflicts with the Compensation and Pension (C&P) clinicians findings. Keep in mind that many of the C&P examiners are nurse practitioners and physician assistants. A board certified physician will hold more weight in front of the BVA. 

Make sure your key physicians have conducted record reviews of you military service records. This is important to the BVA.

However, the DRO or BVA base is smaller. Let's says that 50 of the 80 claimants who were rejected appeal. Only 10 would prevail at the DRO or BVA. At this point about 30 per cent of the claims have been approved. However, the BVA may only approve one of your 4 claims and remand the other three back to the VARO for development.

You are now playing remand ping pong with the your other three claims. 

We now have 40 claimants left who didn't make the cut at the DRO or BVA. These appellants can apeal to the USCAVC. If 10 appeal, about seven will prevail. 

These examples are hypothetical and based on limited data the VA has provided on claims. Much of this information was harvested from congressional testimony.

Of the 33 remaining claimants. about half (15) are fraudulent. If you file a fraudulent claim, you will most likely receive a quick reject. You can also be prosecuted.

It behooves the vet to appeal if he/she have a well grounded claim. The writer recently discovered he was very fortunate to prevail in front of the BVA without an attorney. Generally, once you get into appeals, you should probably hire an attorney. 

Refine your claim based on the attorney's advice and bring in new substantial evidence at the DRO and BVA levels, 

Once you appeal to the USCAVC, the claim is locked. You cannot introduce new evidence.

What do these statistics suggest. Appeal, young person, appeal!

Your odds of winning are highest at the USCAVC level, but you better have a solid claim. You cannot introduce new evidence once the BVA hearing is over. 

graphics: courtesy of AskNod blog.

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Starting a VA Disability claim: To be Pro Se or not to be

When you get ready to file a claim for disability, you have many options.

Many people go to the Veterans Administration (VA) and get a representative called a national service officer (NSO) to handle the claim for them. This would be organizations like the Disabled American Veterans (DAV), or the AMVETS. If you are going his route, the DAV is trained by the VA and has access to some of the VA databases. You have to give the a specific power of attorney (POA) to one of the service organizations.

You can also represent yourself. This is called Pro Se. There are advantages of being Pro Se. Besides having better control of the claim, any veteran proceeding Pro Se gets extra leeway in making his benefits case. Pro Se Veterans' Filings Must Be 'Read Liberally'
See http://blogs.findlaw.com/federal_circuit/2013/01/pro-se-veterans-filings-must-be-read-liberally.html

The bad news is as Pro Se you must educate yourself on the claims process and different strategies you can use. I recommend you start by reading two books: Claim Denied by John Roche and Veteran Administration Claims: What you Need to Know to be Successful by AskNod, The latter book should be used with the AskNod blog: http://asknod.wordpress.com/

I would read the Roche book first because it provides a more general review of the claims process. It also covers a lot of other VA programs you may have little interest in.

The AskNod book is specifically devoted to Disability Claims. You can also submit specific questions to the blog author.

You can file a claim using the old fashioned VA Form 21-526 . There is also an online version called the VONAPP  see http://vabenefits.vba.va.gov/vonapp/main.asp.

The best way to file is a Disability Benefit Questionnaire (DBQ) that is signed by your doctor. The DBQ is in Acrobat format and can be completed online and filed in the VARO's Veteran Center. You can mail it to the VARO by certified mail with a return receipt.

You must write in a nexus staments that connect your medical condition to your armed forces service, Typically you might see a statement like "Mr; Jones medical condition is more likely than not related to his hospitalization in Baghdad, Iraq in 2004 for a leg wound.

The Asknod book will take you through the initial claim, organizing the claim and documenting it. It also address the Decision Review Officer Review. It is the only book that I have reviewed that addresses appeals to the Board of Veteran Appeals (BVA) and the US Court of Veteran Claims (USCAVC) in a comprehensive manner.

The AskNod book discuses filling of Notice of Disagreement, tricks VAROs use to deny the claim , the importance of the BVA Waiver of VARO review, why the the veteran usually gets the higher of disability ratings, Fenderson or staged ratings, and why you need s special statement in claims for Individual Unemployability. It also discusses how vets can get their effective dates for claims pushed back.

AskNod also suggests bringing in an attorney after a denial if you have a well-documented claim at the VARO level. This is where the POA become important.You can not bring in an attorney until the claim has been certified for an appeal to the BVA.

This is another reason why you may want to file the claim Pro Se, Otherwise you will have to rescind POA from the service organization before you can give the POA to an attorney,

AskNod has noted taht the vets are getting smarter and appealing. A BVA appeal can take 3- 5 years. If there are nay open issues, the appeal will be remanded. AskNod also suggests bringing in an attorney to get the claim resolved at the VARO level.

By law, the attorney can take 20 per cent of the claim. This can be expensive but it can avoid extending the claim for years.

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