navigating the va disability compensation claims process legal meets practical, llc...
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Navigating the VA Disability Compensation Claims Process
Legal Meets Practical, LLC
DISCLAIMER
This presentation is for informational purposes and is not legal advice, as every claim is different. Viewing this presentation does not form an attorney-client relationship with Sarah Schauerte of Legal Meets Practical, LLC. If you have specific questions regarding your claim, consult with a
veterans attorney.
Before You Begin
Know to expect delay – the VA currently has nearly 900,000 disability compensation claims pending (Roanoke is the 8th slowest RO)
Talk to someone who can help (lawyer, veteran advocate)
Make a list of potential witnesses Make a list of medical records available
What is Service Connected Disability Compensation?
Money paid to veterans who are disabled by an injury or illness that was incurred or aggravated during active military service.
Show two things: 1) current disability; and 2) disability incurred or aggravated during active military service.
How Do You File?
• Fill out VA Form 21-526 (Veterans Application for Compensation and/or Pension)
Include, if possible:– Discharge or separation papers – Dependents’ records – Medical evidence
• This can be done online through the Veterans On-Line Application (VONAPP). Preferable because faster, easier to verify have completed all sections, and easy to verify receipt by VA
Establishing a Claim for Service Connected Disability Compensation
Five Elements to Establish a S/C Disability Claim:
(1) Veteran Status
Discharged under conditions other than dishonorable
(2) Existence of a current disability
Medical diagnosis of a current disability. Also, the VA has recently recognized that a medical diagnosis is not necessary as it relates to some disabilities (may submit lay witness statements documenting observable symptoms)
Establishing a Claim for Service Connected Disability Compensation
(3) Connection between in-service injury and the current disability
Show a link or nexus between the in-service injury or aggravation (of a disability that existed before service but was aggravated in service) and the current
disability
Establishing a Claim for Service Connected Disability Compensation
(4) Degree of disability
Assessment by a VA rating officer based on average impairment of earning capacity (objective standard)
(5) Effective date
Date from which claim will be paid; file claim immediately to preserve the earliest possible effective date (as long as deadlines met, effective date is generally the first of the month after the month in which claim is filed)
Looking at Elements in Greater Detail
Element #1: Veteran Status: VA defines a veteran as “a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable”
Generally providing DD Form 214 establishes veteran status
Looking at Elements in Greater Detail
Element #2: Current Disability: Veteran must currently suffer the disability for which he is seeking compensation
Pain itself is not a disability No entitlement for pre-existing disabilities or
congenital defects If the disability has healed itself, no entitlement.
Example – Veteran breaks leg during active duty. No residual effects. Not entitled to disability compensation.
Looking at Elements in Greater Detail
Element #3: Link Between In-Service Injury and Current Disability: Show the injury – Use Military Personnel
Records (MPRs) and Service Medical Records (SMRs/STRs)
Part of VA’s duty to assist entails obtaining these records to substantiate claim
Show the connection with current disability Best way – get private physician to opine that the current disability was “as
likely as not” caused by the in-service injury. Submit lay witness statements based on personal observation
Looking at Elements in Greater Detail
Element #3: Link Between In-Service Injury and Current Disability:
Standard – “as likely as not” that the disability is caused by the in service event (lower standard than civil cases). If an equal balance between positive and negative evidence, claim is granted (called “benefit of the doubt” rule)
Presumption of Soundness – Unless VA produces evidence to contrary, presumed that the disability did not exist before service
Looking at Elements in Greater Detail
Element #4: Degree of Disability: Degree of disability can range from 0% to 100% VA will rate a disability based on its “Schedule of
Disabilities” (located at 38 C.F.R. Part 4) The rating based on the severity of the symptoms
related to the disability If you have more than one disability, the ratings will
not necessarily add up mathematically (ie, 10% + 10% +10% + 10% = 30% in VA land)
Looking at Elements in Greater Detail
Element #5: Effective Date of Award: In general, is the first of the month following the month in
which the claim is filed (Ex., if claim is filed on April 15, 2008, effective date would be May 1, 2008)
To preserve effective date, remember: Comply with all applicable deadlines (ALWAYS get return receipts or
send by certified mail, put important dates on calendar) Submit needed evidence in time (VA will instruct you of due dates
applicable to your claim)
Practical Advice
Practical Tip #1: Cover yourself Never miss deadlinesKeep copies of EVERYTHING sent to or
received from the VA Be proactive – seek help when you have
questionsFor important documents sent to the VA, get
certificates of service Label documents sent to the VA with your
service number (the VA loses documents)
Practical Advice
Practical Tip #2: Use lay witness statements Statements from individuals who have had an
opportunity to personally observe facts relevant to your claim (ex, military buddy who witnesses the injury, family member who witnesses symptoms of the disability)
Get an example before writing your own Make sure the statement shows how the witness
“personally observed” the symptoms of the disability (ie, “I noticed him limp when he came to my house, and he asked me for help up the stairs.”)
Get the statements notarized
Practical Advice
Practical Tip #3: Obtain a private physician’s opinionMore sympathetic than VA doctors Saves time (can take a long time for the VA to
set up a VA examination) Magic language: “It is at least as likely as not
that the veteran’s current disability is service-connected”
Make sure the doctor says what he reviewed in giving his opinion, and gives a rationale for his opinion
Practical Advice
Practical Tip #4: Make it Easy for the VA
Don’t send records that are irrelevant (for example, if your claim is for your back, don’t send records about an ankle injury)
Don’t send duplicate records
Practical Advice
Practical Tip #5: Expect Delay
Might take up to nine months for an initial decision Do what you can: submit all relevant evidence
timely, look into whether a medical examination is needed
Writing to elected officials generally will not speed things up
When You’re Not Satisfied With the Decision
VA decision may be appealed by filing a Notice of Disagreement (NOD) within 1 year of the date that VA mailed the original decision denying the claim
After VA receives NOD it will create a Statement of the Case (SOC) which is a detailed explanation of the evidence and laws and regulations used in deciding the claim. It takes roughly 7 months to receive SOC
The SOC is mailed to the claimant along with VA Form 9 Substantive Appeal Form to the Board of Veterans Appeals. Appeal to the Board of Veterans Appeals (BVA) must be made within 60 days of receipt of the SOC or within the remainder of the 1 year period from the date of mailing of the NOD to the VARO, whichever period ends later.
If the claim goes to the BVA, expect a long delay (RO must certify it to the BVA, and then BVA decides issue – can take years)
Two Types of VA Administrative Reviews
1. Decision Review Officer (DRO) review• Request in NOD or w/in 60 days of VA Notice of Right
to Review• All evidence is reviewed anew• Non adversarial informal hearing• Veteran can submit additional new evidence at
hearing• DRO denial proceeds to BVA
Two Types of VA Administrative Reviews
2. Board of Veterans Appeals Review • Administrative Law Judge will review record for error• Veteran may request an informal hearing• Roughly 2.5 years from the time the NOD is filed for case to be
certified to Board and another 2.5 years for the Board to decide the case
• BVA decision is the last step in the administrative process• BVA can remand the claim back to VARO for further
development, grant the claim, or deny the claim• If BVA denies the claim the vet may:
– Re-open claim at the VARO with new and material evidence– File motion with BVA asking for review based on clear &
unmistakable error– Appeal final Board decision to the U.S. Court of Appeals for
Veterans Claims within 120 days (strongly advised to seek legal representation)
DISCLAIMER
This presentation is for informational purposes and is not legal advice, as every claim is different. Viewing this presentation does not form an attorney-client relationship with Sarah Schauerte of
Legal Meets Practical, LLC. If you have specific questions regarding your claim, consult with a veterans attorney.