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

sources:

http://blogs.findlaw.com/federal_circuit/2013/01/pro-se-veterans-filings-must-be-read-liberally.html

http://www.vetshome.com/diabetes_claims_secondary.htm

http://www.benefits.va.gov/warms/bookc.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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