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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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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