Wednesday, April 30, 2014

Prologue to filing a VA claim

Rightardia has written many articles on filing a successful claim.The major learned a lot though trial and error. 

Here are some of the key lessons the major learned. 

1. It will be very hard to prevail in a claim at the VARO without private practice physicians supporting you claim unless you have a presumptive type of condition. Minimally you will need a general practitioner (GP) and one specialist. In the major's claim, he had extensive correspondence from his GP and 5 specialists.
Recommendation: Enroll in ACA if you do not have private practice insurance.

2. Do a lot of upfront work before you file. Have your physicians sign Disability Benefits Questionnaires and get all you ducks in a row. Indicate you are filing a fully developed claim (FDC). This means once you file, you do not plan to submit additional documentation. The DBQ provides considerably more information to the VA than most letters, Make sure you include a nexus statement in the DBQ that ties your disability to you military service. Make sure the doctor indicates he reviewed you service medical records (SMR) on the DBQ, too.
Recommendation: Fill out a DBQ and use DBQs as evidence, Letters should be used a backup.

3. You can have a veteran service officer represent you, an attorney, or you can represent yourself pro se. The major was not greatly impressed with VSOs at the regional office. In general, contacting an attorney prior of submitting a claim seems premature with the advent of the DBQ. 

A Federal Circuit panel noted that its prior decisions in Moody v. Principi, Szemraj v. Principi, and Roberson v. Principi made it clear that pro se filings must be read liberally. All three cases require the VA "to fully and sympathetically develop the veteran's claim to its optimum before deciding it on the merits."

As a vet you get an extra benefit of the doubt filing pro se.
Recommendation: Initiate  your claim pro se.

If the VA denies or low balls your claim, appeal it to the Board of Veteran Appeals (BVA).  You may wish to engage at attorney at this point because the BVA hearing is quasi-legal and USC Code 38 and the 38 CFR (Code of Federal Regulations) now apply. In many states, VSO's are not required to have legal training. The VSO understand VA directives such as M21-1MR, but not USC codes used by the BVA.
Recommendation: Hire an attorney if you appeal to the BVA.

Since you filed an FDC, you should save any new evidence until then and introduce it at at the BVA level. In fact, the BVA wants new evidence. In addition, if you are unhappy with the BVA decision and appeal to the next level, the U.S. Court of Appeals for Veterans' Claims (USCAVC), the evidence is frozen. You cannot introduce new evidence to the USCAVC. 
Recommendation: Submit new evidence when you appeal to the BVA. That may be you last opportunity to introduce new evidence. 

Other comments: Try to organize your claims  in terms of primary and secondary conditions. For example if you served in Vietnam and developed Diabetes Mellitus II from Agent orange exposure, you may also have coronary artery disease, pericarditus and other secondary conditions.

Recently heard about an officer who applied for more than 30 conditions. The VA refers to this as piling on. This approach is a waste of your time and the VA's

A claimant is better off  perusing the 38 CFR disability criteria and identifying the more important disabilities. The VA ha a peculiar way of determining you total disability rating and numerous 10 per cent rating aren't useful.

However,  60 per cent primary disability with multiple secondary ratings is a different story


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