Where to start in VA disability compensation

First, are you eligible?

A veteran must have two years of active duty under her belt as of a 1981 service entry.

You must have a disability that the VA determines is service-connected on active duty, or was made worse by active military service. You must also have a discharge that the VA determines was under other than dishonorable conditions. For example, you are unlikely to qualify for disability compensation if you have a bad conduct discharge. 

 

The disability compensation conditions are less strict than eligibility for some other benefits such as a VA pension or VA home loans. In both cases, you must have served on active duty during a wartime period such as the Korean War, the Vietnam War or the Gulf Wars.

You have three basic options when you start a claim. You can represent yourself “pro se” or give your Power of Attorney (POA) to a Veterans Service Organization or an attorney. 

Let's look at the pros and cons of each. 

Pro Se

1, You have complete control of your claim. If you have to appeal to the Board of Veteran Appeals (BVA) you get special consideration because you do not have professional representation. You can also ask the BVA for a reconsideration of its ruling, something a veteran service organization or attorney cannot do.

You will be able to go to the VA's Veteran Center that has many experienced counselors who can access most VA claims databases.

In addition, you can usually see the same VA counselor as the claim progresses. The Veterans Center is open 5 -days a week and doesn't close during local or national VA conventions or similar events.

You will have to do all of your own research and file the claim using the On-line VONAPP or the VA paper Form 21-526. You will also have to coordinate the completion of Disability Benefits Questionnaires (DBQ) with your physicians and clinicians to document your claim.

You will have to set up a file system for incoming VA letters and outgoing claims documents. You wail need access the Internet, a PC and a printer, preferably a laser multifunction printer. You will need software that is able to edit postscript document format (PDF) documents such as Adobe Acrobat.

Attorney

An attorney can probably provide the best help up front on a claim. If an attorney takes your case, it is a good sign that your case has merit. The attorneys have paralegals who will help you with paperwork and answer questions by phone. You can expect a higher level of service with an attorney.

Most attorneys will also be able to refer you to doctors who understand the VA's documentation requirements and know how to properly complete a DBQ. The VA Regional Office is likely to take attorney representation more seriously than a claim that is represented pro se or by a veterans organization.

The attorney will receive 20 per cent of any retroactive pay that you receive. However, this does not apply to monthly compensation.in contrast, other private practice attorneys take about 1/3 of a settlement plus administrative costs.

Most veteran attorneys do not provide this services to become wealthy Most have been veterans and understand the need for these legal services to vets.

Veteran Service Organizations

Last but not least are the service organizations such as the Disabled American Veterans (DAV), the Veterans of Foreign Wars (VFW) and the American Veterans (AMVETS). There are many others. Most of the states also have state level veteran service officers(VSO).

These veteran organizations usually require POA. However, this does not restrict you from talking to the counselors in the Veteran Center, On the other hand, an attorney will probably want all conservations and documentation to go through the attorney's office.

The exception of the state service organization who usually will not ask for POA. Have found most service organizations to be the least effective way to staff a claim. Many of these offices have limited hours and may be open only 4-days a week. During a VA conventions the entire office may close. One office rotated its VSOs every 90-days and a vet could have 20 different VSOs or more during the life cycle of a claim.

Service organizations are unlikely to help you write or review claim documentation. Service orgs will represent you during a local BVA hearing, but many VSOs lack legal training. This is true in FL. However, in NY a VSO must have legal training.

The state VSOs are a different animal. Many will help you without requiring POA.Most are unlikely to represent you during a BVA hearing.

So, if you are representing yourself pro se, you can still get advice from both counselors in the vet center and from state level VSOs. In the case of the writer, this situation worked best, but it is not for everyone.

Is Pro Se is for me?

Fist of all can you or your significant other write well? Can you distinguish facts from opinion? How good is your grammar and reading comprehension? 

The BVA has strict rules on evidence. The BVA will throw out any opinion other than expert that you try to present as fact. 

Try some of these tests before you dive into pro se.  Check out the following grammar and reading comprehension tests and your ability to distinguish fact from opinion.

See http://www.grammar-monster.comtestsest_parts_of_speech.htm

http://www.ereadingworksheets.com/e-reading-worksheets/online-reading-tests/

If you are having difficulty with these tests, suggest you engage and attorney. Regardless of whether you start the claim with an attorney, you will probably eventually need one if you appeal to the BVA, which provides legal administrative hearings.

sources:

http://vabenefits.vba.va.gov/vonapp/main.asp

VA Form 21-526

http://www.grammar-monster.com/free_grammar_tests.html

http://www.ereadingworksheets.com/free-reading-worksheets/fact-and-opinion-worksheets/

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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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Prologue to a Veteran Affairs Claim

After nearly six years,  a VA claim was resolved to the major's satisfaction. This was after a Decision Review Officer review, a reconsideration and two remands, working on the third.

What did the major learn along the way?

In the long run, you may be better off pro se than using a service organization like the DAV or AMVETS. However,you will have to read some books first, be computer literate and also have an Internet connection. If you are not inclined to do the preceding, use one of the service organizations.

If you opt for pros se, the VARO has to give your claim an extra benefit of the doubt because you are not using a service organization.  Before you file, read these two books:

1. Veterans Administration Claims: What You Need to Know to Be Successful by Asknod.

2, Claim Denied!: How to Appeal a VA Denial of Benefits [Paperback] John D. Roche

You can purchase both books together for $32.05 from Amazon.com. Asknod also has a great blog: https://asknod.wordpress.com/

There are also numerous articles on the disability claim process in the Rightardia blog.

If you decide to go pro se, you will also need above average writing skills. You might want to test your writing skills to see where you are at: see http://www.evc-cit.info/wst/

You can use either MS Word or Libre office (Open Office) to prepare claims documentation. If you use the latter, install the Language Tool add on which provides a grammar checker that is equivalent to the one in MS Word.

When you are ready, you can file the initial claim online, using VONAPP: http://vabenefits.vba.va.gov/vonapp.

In most cases, would not recommend doing this until you have your service military records (SMR) on hand. See http://www.archives.gov/veterans/military-service-records/

Why? Because the claim will be weak and unsubstantiated without documentation from you military service  records.

If you cannot document your condition with evidence that is in your military service records, you are not likely to be successful with your claim.

Ir should be clear by now why being computer literate with an Internet connection is essential for a pro se claim.

However, you should also have Disability Benefits Questionnaires (DBQ) prepared by your doctors.The DBQ is a new innovation that should expedite he claim. A mix of doctors letters and DBQs will help make the case. See http://benefits.va.gov/COMPENSATION/dbq_ListByDBQFormName.asp

The VA DBQs are Acrobat pdf files which can be filled out and printed, but not saved.

The major spent about $100 on a program called PDF Nitro. It allows a user to edit, save and even compile Acrobat documents. You can also convert the documents into Word and Excel docs. If you plan to submit DBQs, you will need a program like this.

Assembling your team of physicians

Many doctors are conservative and view the VA as an unnecessary welfare program. Interview a new doctor and feel them out on their willingness to help. If they won't,  find another doctor. You will need doctors who are your advocate.  You will need a primary care doctor and one or more specialists. You want all of them to be board certified.

You also wants the physicians to indicate they have reviewed your SMRs in any letters or DBQs.

The major's team included a primary care doctor, a cardiologist, a neurologist, a psychologist and an endocrinologist. During the claim, he replaced two endocrinologists and one neurologist.

You can mail in a DBQ and the doctor's letter to the VA. Another way is to take the documents to the nearest VARO Veteran Center. The vet center will add the submission to your claim file (c-file) and put a date time stamp on it. You can also talk to a VA counselor while you are there.

Watch out for Compensation and Pension clinicians. 

Once you have submitted the claim, you may be scheduled for a compensation and pension (C&P) exams. Many of the C&P examiners are not doctors, but Physician Assistants and Nurse Practitioners. Rightardia suggests you insist upon a doctor if C&P calls you.

Regardless of who performs the exam, you can expect to be damned with faint praise. Unfortunately, the Ratings Veterans Services Representative (RVSR) in the VARO will consider the C&P clinician's opinion above that of your physicians

The RVSR is a primary decision maker of the outcome of your claim for VA disability compensation benefits. However, if you have provided compelling evidence in a DBQ, it may preclude a C&P exam. Try to avoid a C&P exam if at all possible. These clinicians are not your friend.

Originally, the C&P doctors we authorized to assist people who lacked medical care. Now, the VA tires to use them to see all vets with claims The DAV indicates DBQ may preclude a C&P exam. This is another reason to use a DBQ.

If you get a bad C&P exam, you have some options. You can get the C&P progress notes after the exam from the FOIA office and write a rebuttal. Errors of commission are not common, but errors of omission are very likely. Write a rebuttal and submit it to the service center.

You can also Rizzo the physician and challenge his or her credentials if the C&P exam is really substandard . You can do this years before a BVA appeal and if the VARO forgets to defend the physician's credentials, his or her physical or progress notes cannot be used in the BVA decision.

The first time the major rizzoed a C&P physician, the VARO asked him if he wanted to be serviced at another hospital. This was baloney because the C&P doctors are not part of the local VA Medical Center. In addition the local VARO supported both hospitals so it would have been pointless to change hospitals.

See http://rightardia.blogspot.com/2010/07/precendent-setting-cavc-cases-that-may.html

Although the RVSRs give primary consideration to the C&P physicians, the Board of Veteran Appeals (BVA) will be far more impressed with the opinion of your board certified physicians. especially if the doctors have reviewed your SMRs, 

Although the VA is now claiming that 70 per cent of its claims are approved, most of the data the major has seen suggests that even after an appeal to the BVA, about 30 per cent of the claims are approved, 

It is likely the initial claim will not be approved by the VARO. if you have a well grounded claim, appeal to the BVA for a review by an administrative law judge.

The law judge has very different perspective than RSVRS who use a VA directive. The law judges considers the VA law in USC 38. These judges are also aware of the US Court of Veteran Appeals (USCAVC) precedent rulings that the VAROs usually ignore. 

The BVA may declare a condition the VARO has denied as service connected. This will result in a remand that will force the VARO to rate a condition it previously denied.

You may want to engage an attorney to represent you during the BVA hearing. Be aware the attorney will receive 20 per cent of any subsequent award.

One of the favorite ploys of a VARO is to say a claimant has not provided new evidence. The major suggests you can get new evidence whenever you visit one of you doctors. Although you may want to give the VA access to your doctor's records in the initial stages of a claim, in the long run this is a bad idea because your c-file will get huge. You also want to filter any data first that goes to the VARO.

It's better to get the progress notes after a visit, review the notes and the carry the relevant notes to the vet center. When the major finally received a Statement of Case, he had references in it to three pages of his documentation.

So document, document and document! 

Is summary, consider going pros se on the claim because you will have a better chance of your claim succeeding. You will need to be computer literate with Internet access. if you are not, use one of the service organizations like the DAV.

Assemble a strong team of physicians who are your advocates. If a doctor won't help you, find one who will.

Use DBQs, doctor's letters and progress notes to document you condition.  Make sure you board certified physicians review your SMRs and document this in your DBQs or letters, 

Expect to have the claim denied by the VARO.  If the claim is well documented, appeal to the Board of Veteran Appeals (BVA). Consider hiring an attorney to represent you in the BVA hearing. The judge is attorney and the VA also has an attorney consul at the hearing.

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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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For vets: Is your VA disability conjunctive ?

It is important for veteran to know where his or her claim file or c-file is. Normally this file will be retained by the local VA Regional Office (VARO).  However, if you have appealed your Local VARO's  decision, the c-file could be in the Appeals Management Center which for all intents and purposes is a specialized VARO in Washington DC handles Board of Veterans Appeals (BVA) remands.

After the local VARO and AMC finish with you c-file, the Board of Veterans Appeals (BVA) reviews the conclusions and can overrule both the VARO, the AMC and even a Decision Review Officer (DRO) decision.

The BVA makes decisions on the law and not VA regulations. Often some of the VARO raters make mistakes. For example, if you have diabetes mellitus., you must meet all of the examples in disability compensation for Diabetes Mellitus  DC 7913, you must meet all of the examples in this DC. This is because DC 7913 is rated conjunctively:

However, all DCs are not rated this way. For example, DC 7903, is not rated conjunctively. This means the raters must see the forest through the trees.

The UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS (USCavc), NO . 07-2728 DIANNE C.  TATUM , APPELLANT , (Argued July 15, 2009 Decided September 28, 2009) ruling explained this.

The USCAVC agreed with Ms. Tatum on her entitlement to a higher disability rating because it agreed with the appellant that all of the examples in DC 7903 did not need to be present for a higher level rating. The USCAVC said that the higher level examples in DC 7903 were inclusive of the lower level examples.

The USCAVC made it clear the laundry lists in in the CFR for disability rating are examples, not criteria. In the case of hypothyroidism, the VAROs will often deny a higher level claim for hypothyroidism if the veterans has not complained of being constipated. This is because a VARO may think DC 7903 is related conjuctively: 

Rightardia has reviewed both BVA and USCAVC cases in which the veteran lost the case over this issue. However, The Major found the Diane Tatum case and relized the VARO "constipation" issue was bogus. 

First, when you are hypothyroid, you my indeed suffer from constipation that may result in hemorrhoids. However, once you take a medication like Levthyrozxine, you will have the opposite problem, diarrhea   

Prednisone and hydrocortisone will also cause the some of the same symptoms when voiding.

The USCAVC concluded a veteran could potentially establish all of the criteria required for either a 30% or 60% disability rating, without establishing any of the criteria for a lesser disability rating.

The USCAVC considers the laundry lists in the 38 CFR for DC 7903 to be examples rather than criteria. In addition, the higher level examples are inclusive of the lower disability rating examples. Thus, DC 7903 is not conjunctive. Such disabilities that are not conjuctive are called "disjunctive." 

38 C.F.R. § 4.21 (2009), is federal regulation which explains that "it is not expected. . . that all cases will show all the findings specified [in an applicable DC (Rating category)]."

Is you VA disability conjunctive? Talk to your Disabled American Veteran, American Legion or other non-governmental rep to find out. If the VARO gave you the "don't meet all of the criteria two step" using an erroneous conjunctive style rating , appeal to BVA or the DRO. This is an important issue that the vet cannot afford to ignore. 

Regarding the c-file. Both the BVA and the AMC have fax numbers and Washington addresses that you can submit new information to. The Major has submitted new information to both the AMC and the BVA after recent doctor's appointments. You can also take this information to the VARO and eventually it will be attached to you c-file. However, if you know your disability is currently being reviewed by the BVA or AMC, send it directly to Washington. 

The Major just completed an important diagnostic test and he called the BVA and DAV Washington to see if the new information could be added to the c-file. Both organizations provided fax numbers 

The BVA said 'yes" and to add this line in the fax cover sheet or transmittal letter prior to faxing: 

I waive regional office (RO) consideration in the first instance for new evidence. 

This is why it is essential the veteran know where his or her c-file is. 

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How to win a VA appeal

The Major got good news from the Board of Veterans Appeals (BVA) today. He prevailed in an eight year claim against the Veterans Administration (VA) that appeared to be heading to Court of Appeals for Veterans Claims in Washington DC.

Rightardia (RI) interviewed The Major (MAJ) about his long ordeal.

RI: What kind of advice would you give other veterans that are filing claims with the VA?

MAJ: Do it now! The Republicans and their appointees were replaced by Democrats in 2009. You have a better chance of getting justice when Democrats are running the VA. The Republicans support the active duty military because they usually start a war when a Republican is president.

George W. Bush even thought he needed to earn his spurs as a commander in chief by starting a the Iraq War. However, the GOP is less concerned about vets and many vet organizations like the Iraq and Afghanistan veterans actually supported Obama during the election.

RI: How did you do to get started with the claim?

The Department of Veteran Affairs has advice and a document list at http://www.gmasw.com/vaclaim.htm.You need your DD form 214 military record of service, your marriage certificate (if currently married), divorce papers or death certificate for all prior marriages of either the veteran or spouse/widow(er), birth certificates for all children being claimed as dependants between 18 &23, and doctor's statement (s)

These doctor's statements should make reference to medical findings, treatment, diagnosis, and prognosis. A widow(er): Should submit veteran's death certificate instead of a doctor's statement (s). You should also submit the Social Security number for each family member and income data for each family member. You may be asked for current value of savings accounts, real estate (excluding home), or non-essential personal property.

You should submit your initial claim to any VA office or medical center on VA Form 21-256. You can ask for help from a Veteran's Service Officer (VSO) from the State Veterans Affair Office, Amvets, VFW, or the American Legion.

The Major recommends checking around on the reputation of the different organizations. He had three different VSOs during the claim's process and one was good, one was bad and one was fugli. He actually had to 'fire' the fugli one.

A veteran has one year after leaving active duty to file a claim. The Major recommends all vets do this when they leave the service because they may have hidden medical conditions. It also important that the veterans leave the service with a copy of his or her medical records.

These records will be essential in the claim. The major also recommends the the vet does the paperwork themselves and have the VSO review it. Unless you have limited writing skills, don't give the VSO you power of attorney. One of our VSOs (the fugli one) was submitting claim documents in The Major's name without The Major's knowledge.

RI: You told us that your wife was involved with the claim.

MAJ: Yes, she contacted a congressional office after the claim had been dragging on for five years and we got some good advice from a congressional staffer. She also kept close track of all of the dates and times we visited the VA and related offices. Her recall of dates was very helpful when I wrote the appeal. She also reviewed all of the documents I submitted to the VA and the second set of eyes helped a lot.

RI: What would you recommend the vet do when he or she submits the initial claim on the VA Form 21-256?

MAJ: Vets should have a time-line that show how the condition progressed in the medical records. It should be documented with attachments from the medical records. The vet should try to show cause and effect.

In my case, I developed a serious endocrine problems while I was in the Air Force while working in a industrial photo lab. I was exposed to all sorts of chemicals in an era before OSHA. An allergy clinic documented the symptoms I was experiencing in the the photo lab.

The duty in the photo lab was the causal factor. I then used my medical records to document the numerous visits to the base hospitals and clinics that ensued afterward.

RI: Why are civilian doctors important?

MAJ: The VA will not accept lay testimony at all. You need one or more letters from a medical doctor that agrees that your medical condition was caused 'more likely than not' while you were on active duty. Use a board certified doctor whenever possible.

I suggest you try to find a doctor that is a 'VA virgin.' This would be a doctor who has never worked for the VA in any capacity. I talked to different doctors and discovered that most doctors who had formerly worked for the VA were skeptical and unhelpful. Most of these doctors do not desire to 'rock the VA boat.'

One of 'these former VA' neurologists I consulted with on my condition said it was very common and he doesn't even tell his patients they had this particular problem when he noticed it during an MRI. My condition is actually a rare disease that occurs in 1:200,000 people. This neurologist also suggested I was born with the condition.

My endocrinologist said had I been born this way I would have been of short stature and unable to have any children. I am more than six feet tall and have three children.

I knew the neurologist was a misinformed because the endocrine problem I had could lead to death if my endocrinologist had not diagnosed it. My endocrinologist laughed when I discussed this neurologist's comments.

Another doctor who was a former USN physician and an occupational specialist looked at a draft document I worked on and suggested it was more or less a lost cause and the document needed more polish. He then asked if a had post traumatic stress disorder because that is what he liked to treat.He also tried to talk me down regarding the percentage of disability that I was asking for.

My condition which was an endocrine condition often masquerades itself as a cardiac condition because of low pulse. A Doctor of Osteopathy assured me my heart was OK, but that I needed to read a book to prepare for the end of my life. About a year later, I discovered I really had an endocrine problem.

I also got a second opinion from another endocrinologist who provides services to the VA. He said my hidden endocrine condition would be hard to prove because it started many years ago. He didn't give me much hope and was very cynical.

All four of these doctors,who had worked for or provided services to the VA, were wrong in some respect. My appeal to the VA was successful so don't let these bastards get you down!

RI: Do you have any other advice?

MAJ: if you have limited writing skills, get someone like a legal aide to help you right the original claim and any appeals. Have your SVO and congressional staffers review the documentation before you submit it. Document, document and document. Show a time-line and cause and effect. Write a draft letter for you doctor and email him or give him a CD with the word processing document so the doctor can edit it. The VA is looking for certain terminology like 'more likely than not' occurred on active duty. Use those buzz words.

In my case I mentioned the endocrine problem to the cardiologist who was treating me and he was flabbergasted. He had only seen my condition in a text book. He also offered to write a letter on my behalf. I didn't even have to ask him to write it. So my appeals had two letters from board certified doctors in it. Both letters were mentioned prominently in the BVA concurrence with my appeal.

RI: How do you avoid a remand?

MAJ: Yes, get a civilian doctor to perform a physical and also have the doctor review you military medical records. Indicate the physical and the medical records review was completed by a civilian doctor in the initial claim and any appeal. This will prevent the BVA from remanding the appeal back to the hospital if the hospital forgets to give you a physical or a records review.

If you have done your home work, the appeal before a judge will be straight forward. Bring your spouse to the hearing. He or she may be able to add details you neglected to mention. I will not wish any veteran good luck because a VA appeal is more about writing skills and documenting your disability than luck. Praying is of no benefit either, but you are welcome to try that if you are religious.

By the way the documentation you submit to the BVA must be used as is and without modification if you appeal to Court of Appeals for Veterans Claims in Washington DC. This means documentation you submit to the BVA must be complete and accurate. Of interest nearly 80 per cent of the cases that are reviewed by the Court of Appeals are overturned or remanded.

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