VA Accreditation Course © 2017 Michael L. Shea Page i

VA Accreditation Course

Michael L. Shea, Esq. The Law Offices of Michael L. Shea, LLC

About the Presenter: Mike Shea Mike is a Colorado attorney accredited to practice before the Veterans Administration and the Court of Appeals for Veterans Claims. He is a sole practitioner in Centennial, Colorado where his practice focuses on the legal issues facing veterans and their families. Mike is a retired military officer who spent eight years on active duty with the U.S. Marine Corps and 20 years with the Colorado Army National Guard. He retired from the National Guard in 2009. Mike’s combat experience includes one tour of duty in Vietnam as a Marine helicopter pilot (1972/73) and two tours of duty in Iraq as an Army medevac helicopter pilot (2003 and 2007/08). Mike’s interest in the legal issues of veterans developed as a result of his two deployments to Iraq and observing the problems experienced by soldiers and Marines as a result of their combat experiences. Mike is a member of the Colorado and Arapahoe County Bar Associations. He is vice-chair of the Dispute Resolution section and is a member of the Military Law Committee of the Colorado Bar. He is a member of Colorado Lawyers for Colorado Vets, a project of the Denver and Colorado Bar Associations. Mike is a graduate of the University of Denver. He received his MBA and his Juris Doctorate in 1980. Mike can be reached at 303-710-9521, or by email at mike@mikesheaveteranslaw.com.

VA Accreditation Course © 2017 Michael L. Shea Page ii

What This Course Will Cover

This manual covers two half-day presentations. The first half of the manual covers the basics for accreditation to practice before the Department of Veterans’ Affairs (VA).

Subsequent to the self-certification application for accreditation, the attorney who wishes to practice before the VA must complete 3 hours of qualifying continuing legal education. The CLE course must be approved for a minimum of 3 hours of CLE credit by any State Bar association. The 3 hour CLE must cover the following topics:

Representation before the VA;

Basic eligibility for VA benefits

Disability compensation under 38 U.S.C. Chapter 11

Pension under 38 U.S.C. Chapter 15

Dependency and indemnity compensation under 38 U.S.C. Chapter 13

Claims Procedures

Right to appeal and the appeals process The second half of the manual covers more in-depth issues for practitioners.

Agent Orange Claims and the Nehmer case

Recent changes in VA regulations concerning Claims for TBI and PTSD

Representing the Claimant who has an Other than Honorable Discharge

Section 1151 claims

The DRO Process

Escalating the Appeal to the Board of Veterans’ Appeals

Advocacy tips for claims and appeals

The Court of Appeals for Veterans’ Claims

VA Accreditation Course © 2017 Michael L. Shea Page iii

Equal Access to Justice Act This course includes a CD-ROM that contains most of the forms that an attorney will need to either process a Veteran’s claim or pursue an appeal. The author requests comments, addressed to the above email address if links are broken or out of date. Primary References 38 United States Code 38 Code of Federal Regulations M21-1MR (WARMS –Web Automated Resource Materials, Manual Re-write) http://www.benefits.va.gov/warms/ The VA’s website at www.va.gov Stichman, Barton; Abrams, Ronald; George, Louis, Veterans Benefits Manual. National Veterans Legal Services Program, LexisNexis (2013). Board of Veterans’ Appeals website at www.bva.va.gov/ Board of Veterans’ Appeals search engine at http://www.index.va.gov/search/va/bva.html Court of Appeals for Veterans’ Claims website at http://www.uscourts.cavc.gov/

VA Accreditation Course, © Michael L. Shea 2014 Page 1

Chapter I

The Basics of Representation America’s Veterans Population World War II. The Department of Veterans Affairs (VA) estimates that by September 30, 2013 there will be1.2 million living WWII veterans, although more than 850 pass away each day.1 It is estimated that there will be no living WWII veterans by 2036.

Korea. The Korean War period, as defined by the VA, lasted from June 27, 1950 to January 31, 1955.2 According to the VA, 1.8 million men and women served in-country, and 5.7 million served during the conflict.3 The Veterans Administration estimated last year that there were 2.27 million Korean War Era Veterans still living.4

Vietnam. Between February 28, 1961 and May 7, 1975 over 3.4 million service members served in-theater in Vietnam. A total of 8.7 million served during the Vietnam War Era. It is estimated that there are currently 7.3 million living Vietnam War Era Veterans.5

Persian Gulf. The Persian Gulf War is defined as August 2, 1990 to a date to be prescribed by Presidential proclamation. The period includes Desert Storm/Desert Shield, Operation Enduring Freedom and Operation Iraqi Freedom since September 11, 2001.6 The last twenty years of conflict in the Middle East have seen more than 2.2 million servicemembers deployed.7 As of July 31, 2013 there were 1.37 million service-members deployed worldwide.8 As of September 19, 2013 there were 139,480 servicemembers deployed in contingency operations in the Middle East. These numbers include Guard and Reservists ordered to active duty.9

According to the VA, there are currently about 22 million living veterans of the U.S. military. In 2006, the VA provided medical services to over 5 million veterans. There were an additional 2.9 million veterans who were enrolled in the VA’s healthcare system but didn’t seek medical services that year.10

As of September 30, 2011, the VA reports that 3.36 million veterans were receiving disability compensation payments for their service-connected injuries.

1 http://www1.va.gov/opa/publications/factsheets/fs_americas_wars.pdf.

2 www.vba.gov/bin/21/pension/wartime.htm, see also 38 CFR §3.2.

3 Supra, note 1.

4 Ibid.

5 Ibid.

6 Supra, note 2.

7 www.kansascity.com/2011/12/16/3324432/veteran-benefits-inflate-rising.html.

8 https://www.dmdc.osd.mil/appj/dwp/reports.do?category=reports&subCat=milActDutReg

9 Ibid “OCO Deployments” tab.

10 http://www.cbo.gov/ftpdocs/88xx/doc8892/12-21-VA_Healthcare.pdf.

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313,000 were receiving a VA Pension.11 These numbers include the estimated number of WWII Veterans still living. There were 553,000 surviving spouses, children and parents receiving death benefits for their service and non-service connected disabled veterans.12 With the end of the War in Iraq and the future drawdown of troops in Afghanistan, it is obvious that the services provided by the VA, both medical services and compensation and pension payments, will increase. This chart shows that the number of servicemembers who served and those who are still living and have applied for compensation or pension with the VA is approaching a one for one ratio. The number of servicemembers who have served in-country in the Persian Gulf period and the number who have applied for compensation or pension are almost equal.

You are taking this course because you have chosen to help these veterans

apply for benefits or help them appeal the denial of benefits. The legal work that you have elected to perform is less important than the fact that you will be a valuable source of information and support for veterans as they navigate the benefits/claims process.

DEFINITIONS

The Veterans Administration, like most government agencies, uses a lot of acronyms. It is necessary to define some terms that will be used throughout this course. These definitions are found in 38 U.S.C 501(a) and 38 CFR §3.1. Claim Application - means a formal or informal communication in writing

requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit.

11

Supra, note 1. 12

Ibid.

0.0

2.0

4.0

6.0

8.0

10.0

12.0

14.0

16.0

18.0

20.0

WWII Korea Vietnam Persian Gulf

Appx. Total

Millio

ns

Served

In-country

Still living

Comp/Pen

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dd214 – means the basic discharge document issued by a military service to a

servicemember who has served on active duty.

Discharge or release - includes retirement from the active military, naval, or air service.

DRO – means the Decision Review Officer at the VA’s Regional Office.

eBenefits – means the electronic system used by the VA to provide personal information, claims status and claims filing services for active duty and retired servicemembers. Use of this system requires a Common Access Card (CAC) or a DoD MyPay account.

Fraud - means an intentional misrepresentation of fact, or the intentional failure to disclose pertinent facts, for the purpose of obtaining, or assisting an individual to obtain an annulment or divorce, with knowledge that the misrepresentation or failure to disclose may result in the erroneous granting of an annulment or divorce. Fraud also means an intentional misrepresentation of fact, or the intentional failure to disclose pertinent facts, for the purpose of obtaining or retaining, or assisting an individual to obtain or retain, eligibility for VA benefits, with knowledge that the misrepresentation or failure to disclose may result in the erroneous award or retention of such benefits.13

Improved pension - means the disability and death pension programs, payable to a living Veteran, which became effective January 1, 1979.

Improved death pension - means a benefit payable by the VA to a veteran’s surviving spouse or child because of the veteran’s non service-connected death.14

Income for VA Purposes (IVAP) – means the income used by the VA to determine pension eligibility. Not all income is counted by the VA. If the IVAP is greater than the MAPR, eligibility for pension will be denied.

Marriage - means a marriage valid under the law of the place where the parties resided at the time or marriage, or the law of the place where the parties resided when the right to benefits accrued. Common law marriages are accepted if common law marriages are recognized by the state.15

Maximum Annual Pension Rate (MAPR) – means the maximum amount the VA will pay to a veteran as a pension. This amount is adjusted annually.16

13

38 U.S.C. §6103.a 14

38 CFR §3.3(4) 15 M21-1MR, Part III, Subpart iii, Chapter 5, Section C 16

http://www.benefits.va.gov/PENSIONANDFIDUCIARY/pension/rates_veteran_pen12.asp

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NCA – means the National Cemetery Administration of the VA.

NGB22 – means the discharge certificate issued by the National Guard.

Old-Law pension - means the disability and death pension programs that were in

effect on June 30, 1960. This is also known as protected pension.

Reserve component - means the Army, Naval, Marine Corps, Air Force, and Coast Guard Reserves and the Army National Guard and Air National Guard.

Service-connected - means, with respect to disability or death, that such disability was incurred or aggravated, or that the death resulted from a disability incurred or aggravated in line of duty in active military service.

Spouse and surviving spouse - Spouse means a person of the opposite sex (but see changes as a result of the U.S. Supreme Ct. case overturning certain provisions of the Defense of Marriage Act, U.S. v. Windsor, 570 U.S. ___(2013) Docket No. 12-307) whose marriage to the veteran meets the requirements of the definition of marriage set forth above. Surviving spouse means a person of the opposite sex whose marriage to the veteran meets the requirements of the definition of marriage set forth above and who was the spouse of the veteran at the time of the veteran’s death; and who lived with the veteran continuously from the date of the marriage to the date of the veteran’s death except where there was a separation which was due to the misconduct of, or procured by, the veteran without the fault of the spouse; and the surviving spouse has not remarried, or after September 19, 1962, has not lived with a person of the opposite sex and held himself or herself out to the public to be the spouse of such other person.17

STR – means “Service Treatment Records” for medical care provided while on active duty.

TRICARE – means the health care program provided to active duty military, retirees and families.

VARO - means Veterans Affairs Regional Office.

VBA – means the Veterans Benefit Administration.

Veteran - means a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable.

17

38 CFR §3.50 but see also the provisions in 38 CFR §3.55 for exceptions to the remarriage rule.

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For compensation and dependency and indemnity compensation the term veteran includes a person who died in active service and whose death was not due to willful misconduct.

For death pension the term veteran includes a person who died in

active service under conditions which preclude payment of service-connected death benefits, provided such person had completed at least 2 years honorable military service.

Veteran of any war - means any veteran who served in the active military, naval

or air service during a period of war.

VHA – means the Veterans Heath Administration.

VSO – means a Veterans Service Organization. These are recognized organizations where the organization can legally represent the veteran before the VA, or non-recognized organizations that can provide the veteran with information concerning benefits and claims but cannot represent the veteran before the VA.

Veteran Services Officers – means those individuals employed by the counties who represent veterans on behalf of individual states’ Department of Military Affairs or similar organization.

Willful misconduct - means an act involving conscious wrongdoing or known prohibited action. A service department finding that injury, disease or death was not due to misconduct will be binding on the VA, unless it is patently inconsistent with the facts and the requirements of laws administered by the VA.

VONAPP – means the VA’s online application system for benefits.

WARMS – means the web-automated reference material system. ACCREDITATION

Effective June 23, 2008, attorneys who represent or assist veterans in preparing, presenting and prosecuting claims for benefits must be accredited by the VA’s General Counsel.18 Attorneys assisting veterans with claims for benefits prior to the effective date of the new rules may continue to assist those veterans on those claims. Representation after June 23, 2008 requires accreditation.19

18

38 U.S.C. Chapter 59, 38 CFR §14.629. 19

See VA General Counsel’s FAQs on accreditation http://www.va.gov/ogc/accred_faqs.asp.

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The above rule also applies to those attorneys who represent veterans on a pro bono basis.20

In order to be accredited, the attorney must file VA Form 21a Application for Accreditation as a Claims Agent or Attorney with the General Counsel. This process is fairly simple. The attorney self-certifies his or her qualifications and then mails, faxes or emails the signed form to the General Counsel at:

Department of Veterans Affairs Office of the General Counsel (022D) 810 Vermont Ave., NW, Washington, D.C. 20420 Fax: (202) 495-5457 Email: ogcaccreditationmailbox@va.gov. Everyone taking this CLE course who intends to represent veterans should have

already submitted the VA Form 21a and received confirmation of accreditation from the General Counsel.

After being recognized in the initial accreditation process, an attorney must complete three hours of qualifying continuing education during the first 12-month period following the date of initial accreditation.21 This course satisfies that requirement. Once you have completed this course, or any other approved course, send a letter to the General Counsel at the end of your first year of accreditation, certifying that you have completed the CLE.22

To maintain your accreditation, you must complete another three hours of CLE

on veterans’ benefits law within the first three years after accreditation, in addition to this course, and must attend a three hour course every two years thereafter.23

In other words, there is a lot of continuing legal education for possibly not much

remuneration, as we will discuss below.

REPRESENTATION

Once you have been accredited by the General Counsel, you may represent claimants upon submission of a VA Form 21-22a Appointment of Representative.

If you have other attorneys, support staff or legal assistants in the office who will

be working on the claim, you will need to get the written consent of the veteran for those individuals to view the veteran’s VA records.24

20

Ibid. 21

38 CFR §14.629(b)(1)(iii). 22

38 CFR § 14.629(b)(1)(iv). 23

Ibid. 24

38 CFR §14.629(c)(3).

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A veteran may have only one representative at a time. Often, a veteran has

retained a Veterans Service Organization (VSO) such as the Veterans of Foreign Wars, American Legion, Disabled American Veterans, Paralyzed Veterans of America, or a county Veterans’ Services Officer, etc. to represent him or her on the initial claim but sometimes the claim gets lost or the initial claim is denied and the previous representative recommends that the veteran seek an accredited attorney. 25 When this occurs, the attorney must submit a 21-22a to the VARO. The VA then deletes the previous power of attorney from the veteran’s file.26

A search engine for accredited attorneys, VSOs and county Veteran Services

Officers is available at http://www.va.gov/ogc/apps/accreditation/index.asp. VSOs and county Veteran Services Officers are tremendous resources if you have questions regarding claims or process. A list of all state veteran services officers is available at the website of the National Care Planning Council.27 FEES

Only accredited agents and attorneys may receive fees. If a veteran comes to you for help in preparing and filing the initial claim, you may not charge a fee for those services.28 However, once an agency of original jurisdiction (generally the VA Regional Office where the original claim was filed) has issued a decision on a claim or claims, including any claim to reopen under 38 CFR §3.156 or for an increase in the rate of a benefit, and a Notice of Disagreement has been filed with respect to that decision on or after June 20, 2007, a reasonable fee may be charged.

The fees that may be charged may be based on a fixed fee, an hourly rate, a percentage of past-due benefits, or any combination of the above. Fees that are to be paid by the VA directly to the attorney are presumed to be reasonable if they are limited to 20 percent of the total amount of past due benefits. Fees exceeding 33 1/3 percent of past-due benefits are presumed by the VA to be unreasonable and are unlikely to be reimbursed to the attorney by the VA.29 Past-due benefits are one-time payments and do not include any future increases in benefits that are paid to the veteran. FEE AGREEMENTS

Fee agreements should be established at the time the veteran first contacts you and should specify that no fees will be charged for filing the claim. Fee agreements must clearly specify if the VA is to pay the attorney directly. If this provision is not in the

25

http://www1.va.gov/vso/ 26

The 21-22a form sometimes gets lost, or doesn’t get filed in the Veteran’s electronic file. Notices to the Veteran may go to the previous representative, e.g. Disabled American Veterans. It is helpful if the attorney calls or visits the RO several weeks after the form has been filed on behalf of the Veteran to insure that the appropriate representative is on file. 27

http://www.longtermcarelink.net/ref_list_state_county_veterans_service_officers.htm 28

38 CFR §14.636(c). 29

38 CFR §14.636(e),(f) and (h).

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agreement, the VA will presume that the veteran is liable for paying the fee directly to the attorney.30

Fee agreements must specify: the name of the veteran, the name of the claimant, if other than the veteran, the name of any disinterested party (if any), the veteran’s VA file number31, and the specific terms under which the amount to be paid will be determined.32 Copies of fee agreements must be mailed to the Office of the General Counsel within 30 days of their execution. You may also send a PDF of the fee agreement to feeagreements.ogc@va.gov.33 The document title must be in the form {attorney last name}.{veteran’s last name, first initial}.{date of agreement (mm/dd/yyyy)}, e.g. Shea.Smith,A.12-31-2013.

If the fee agreement specifies that the fee will be a direct pay from the VA, the attorney must also file a copy with the office of original jurisdiction.34 The VA pays the attorney 60 days after the veteran receives the arrearages. The veteran can release the attorney fees earlier than 60 days by writing a letter to the regional office.

The VA will withhold 5% of the fee paid to the attorney, but not in excess of $100,

to cover the cost of paying the fee to the attorney.35 ORGANIZATIONAL STRUCTURE OF THE VA

The U.S. Department of Veterans Affairs consists of three main administrative bodies: the Veterans Health Administration, Veterans Benefits Administration and the National Cemetery Administration.36

Veterans Health Administration (VHA)

The VHA currently provides health care to more than 8.5 million enrolled veterans at more than 1,400 sites throughout the country. The VA operates 152 medical centers (VA Hospitals) and more than 800 community based outpatient clinics. It has affiliations with more than107 academic health systems. In 2011, the medical centers treated more than 690,000 patients and the outpatient clinics registered more than 79 million visits.37 Claims for medical benefits only can be filed on VA form 1010EZ which is a fillable pdf form.

30

38 CFR §14.636(g). 31

For initial claims, the VA file number will be the Veteran’s social security number. For claims filed prior to1980, the VA assigned a different number to the claim. Review the Veteran’s paperwork from the VA to determine which number should be put on correspondence to the VA, especially the fee agreement. 32

Supra note 30. 33

38 CFR §14.636(g)(2). 34

38 CFR §14.636(g)(3). 35

38 CFR §14.636(h). 36

Department of Veterans Affairs 2010 Organizational Briefing Book, http://www.va.gov/ofcadmin/docs/vaorgbb.pdf 37

http://www.va.gov/healthbenefits/resources/publications/IB10-465_Veterans_Health_Guide2012_508.pdf.

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Veterans Benefits Administration (VBA)

The VBA is responsible for administering those programs that provide financial and other forms of assistance to veterans, dependents and survivors. These programs include compensation, pension, survivor’s benefits, vocational rehabilitation and employment assistance, education (GI Bill), home loan guaranties and life insurance coverage. This is the office that you will primarily deal with when processing claims for Veterans. National Cemetery Administration (NCA)

The NCA operates 131 national cemeteries in the U.S. and Puerto Rico. Arlington National Cemetery in Washington, D.C. is probably the best known of these national cemeteries. The NCA furnishes headstones and markers at no cost to the veteran’s family.38 More than 3.5 million veterans, spouses, and dependents are buried in the NCA’s cemeteries. VETERANS BENEFITS IN GENERAL Service-Connected Disability Benefits

Disability benefits are also called “compensation”. Monetary amounts are paid to a veteran because of a service-connected disability. Although attorneys are not expected to be medical professionals, if you are going to represent veterans with service-connected disabilities, it is important to know and understand the schedule for Rating Disabilities in 38 CFR Part IV.39 The service-connected rate schedule for 2014 is included at Exhibit A.

1. The claimant must be a “veteran”. In the case of claims by surviving spouses

and children, the deceased spouse must have been a “veteran”. That is, the claimant must have served on active duty. Members of the National Guard must have been called to active duty under Title 10 U.S.C.40 Reservists may be considered to have served on active duty under certain circumstances.41

2. The veteran must have been discharged or released under conditions other than

dishonorable, but see 38 CFR 3.360 for medical care for servicemembers discharged with an Other Than Honorable discharge (OTH).42

3. The veteran must have incurred the injury or illness during service and in the line

of duty (or for certain Agent Orange claims within a period of time after release from active duty). Certain illnesses and injuries acquired during designated periods of war

38

38 U.S.C. §2306(d). 39

38 CFR Part 4; M21-1MR, Part IV, Chapters 1 and 2. 40

38 CFR §3.12a(a). 41

38 CFR §3.6. 42

38 CFR §3.12.

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are presumed to be service-connected so long as there is a diagnosis of a current disability. These presumptions exist for Korean War veterans who have cold injuries, Vietnam veterans with certain Agent Orange related illnesses, and Gulf War veterans with undiagnosed illnesses.

4. The veteran must show competent evidence of a current disability or persistent

or recurrent symptoms of a disability.

The Disability Ratings Schedule

1. 38 CFR Part IV provides the description and tables for how various injuries and illnesses are rated. It is important that the attorney/representative become familiar with the provisions of Part IV.

2. Disability ratings go from a minimum of 10% to a maximum of 100% in 10% increments.

3. Ratings are not additive. That is, a veteran with two separate ratings, say 40% and 30% does not receive compensation at the 70% level but at the 60% level. The VA assumes that prior to the issuance of any rating, the veteran is 100% able-bodied. The VA starts with the highest rating, in this case 40%, and multiplies it by the 100% status. This results in the veteran being 40% disabled and 60% able-bodied. The VA then applies the 30% disability rating to the remaining 60% and arrives at 18%. This factor is then added to the 40% to arrive at 58%, which is rounded upward to 60%. The veteran is now determined to be 42% able-bodied. Any further disability ratings will now be calculated against this able-bodied number. For example, subsequent ratings of 10% each will reduce the able-bodied figure by 4.2% and then 3.8% respectively.

4. Certain illnesses/injuries may be rated at the minimum 10%. For example, Tinnitus is usually rated at the minimum rating.

5. Certain illnesses/injuries may be given a service-connection but a 0% rating. For example, many pilots have severe hearing loss. However, the VA will usually rate hearing loss as service-connected but with a 0% rating. A veteran has to be virtually deaf in order to receive any compensation for hearing loss. However, with any service-connected rating, a veteran is entitled to hearing aids, regardless of whether the disability is related to hearing loss.

Special Monthly Compensation (SMC) SMC is a benefit established by statute.43 It is paid in addition to the basic scheduler rate for the anatomical loss, or loss of use, of a hand or foot or sensory organ. The SMC tables provides additional payments for loss or loss of use of one or both extremities, loss or loss of use of a creative organ, blindness, complete aphonia,

43

38 U.S.C.S. § 1114.

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deafness in both ears, loss of one or both breasts, being housebound or requiring a need for aid and attendance. For example, a single veteran may be rated at 100% due to the anatomical loss of both arms above the elbow. Under the regular scheduler rate, the veteran’s service-connected compensation is $2,858. Under 38 U.S.C. §1114(n), the veteran will be paid SMC of $1,318 for a total monthly compensation of $4176. Aid and Attendance (A&A) or Housebound Aid and Attendance is an SMC for those veterans rated at 100% and in need of the regular aid and attendance of another to perform personal functions of daily living.44 The following factors are considered when evaluating entitlement to A&A:45

1. Inability to dress or undress without assistance,

2. Inability to keep oneself ordinarily clean and presentable without assistance, 3. Inability to feed oneself without assistance, 4. Inability to attend the wants of nature, 5. Incapacity that requires care or assistance on a regular basis to protect the

veteran from the hazards or dangers incident to his daily environment.

Housebound

Certain individuals may qualify for Housebound status under 38 CFR 3.351.46

1. Veterans entitled to disability pension, and 2. Surviving spouses entitled to

a. Improved Pension b. Death compensation, or c. Dependency and Indemnity Compensation.

A veteran qualifies for SMC if s/he has a single, permanent disability rated at 100% and has other disabilities independently ratable at 60% or more; or is permanently housebound by reason of his/her disabilities, or qualifies under Hartness v. Nicholson (2006)47 when the veteran’s pension was granted based on the veteran being 65 or older. For non-service connected claims, the disabilities must be permanent.

44

Ibid at (l). 45

38 C.F.R. § 3.352(a)(2013). 46

M21-1MR, Part V, Subpart iii, Chapter 2, Section A, 2. A. 47

20 Vet. App. 216 (2006)

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A veteran is considered permanently housebound if the individual is substantially confined to home (or ward or clinical areas, if institutionalized) or immediate premises because of disability or disabilities that are reasonably certain to be permanent.48 A&A and Housebound payments may be reduced or discontinued based on changes in the veteran’s status. Pension Benefits

A non-service connected pension may be paid to a veteran for non service-connected disabilities under certain conditions.49 See Exhibit C for the MAPR amounts.

Basic Eligibility for Pension

1. The claimant must be a “veteran”.

2. The veteran must have been discharged or released under conditions other than

dishonorable, but see 38 CFR 3.360 for medical care for servicemembers discharged with an Other Than Honorable discharge (OTH).50

3. The veteran must have served at least 90 days of “continuous active duty wartime service” if he or she served prior to September 7,1980 or 24 months of active service, or the full period for which the veteran was called or ordered to active duty, if the service occurred after September 7, 1980.51 At least one day of the service must have been during “wartime”. It is not a requirement that the veteran have have served “in-country” or overseas during that period. Financially needy veterans who served on active duty “between” wars and do not have a service-connected disability are not eligible for a pension.

4. The veteran must have limited income and a net worth that does not provide adequate maintenance (the “needs test”).

5. The veteran must be permanently and totally disabled, or

6. 65 or older

If the veteran is under the age of 65 and receiving a Social Security Disability benefit, (SSDI or SSI) the VA will presume that the VA pension disability requirement is met.52

48

Supra, Note 52 at A, 2. C. 49

38 CFR §3.3. 50

VA Fact Sheet 16-8 (Other than Honorable Discharges: Impact on Eligibility for VA Health Care Benefits)(Mar. 2010). 51

38 U.S.C. 5303A, 38 CFR §3.12a. 52

M21-1MR, Part V, Subpart i, Chapter 2, 1.e.

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The pension paid to a veteran is often called a “live pension”. The pension paid to survivors of veterans who died because of a non service-connected disease is called a “death pension”. The “death pension” is paid to a surviving spouse or child.”53

Once the claimant has met the conditions of basic eligibility, there are two additional financial requirements, a “Needs Test”, that determines eligibility on an income standard, and a “Net Worth” test that determines eligibility on the veteran’s net worth.

Needs test

1. The veteran’s household income must be less than the Maximum Annual Pension Rate (MAPR). As of January 1, 2014 the rates are:54

a. $12,652 for a veteran without a spouse, or a child, b. $16,569 with one dependent, c. $15,461 housebound without dependents, d. $19,379, housebound with one dependent, e. $21,107, Aid and Assistance without dependents, f. $25,022, Aid and Assistance with one dependent, g. $16,569, two veterans married to each other.

2. Countable Income. Countable income includes income from most sources as

well as from any eligible dependents. It generally includes earnings, disability and retirement payments, interest and dividend payments from annuities and net income from farming or a business.55 Unreimbursed medical expenses over 5% of the MAPR will reduce the amount of countable income. The pension only pays the difference between the amount of countable income and the MAPR.

If a veteran’s income decreases after the initial Pension award, the veteran may apply for additional Pension benefits on the basis of the reduced income.56 Be aware of the time limits for the veteran to report the reduced income or submit information such as unreimbursed medical expenses, which reduce countable income.57

3. Income exclusions. Certain income is excluded for purposes of eligibility for an

Improved Pension.58 This is not an exhaustive list.

a. Welfare benefits, including Supplemental Security income b. Maintenance provided by a relative, friend or charitable organization. c. VA pension benefits, d. Reimbursements of any kind for any casualty loss,

53

M21-1MR, Part V, Subpart i, Chapter 1 a. 54

. http://www.agingoptions.com/wp-content/uploads/2011/08/VA-Pension_Compensation_-SMC-Rates.pdf. 55

http://www.vba.va.gov/VBA/. 56

38 CFR 3.660(b)(1). 57

M21-1MR, Part V, Subpart iii, Chapter 1, Section H, 52. d. 58

38 CFR §3.272.

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e. Profit from sale of real or personal property, other than in the normal course of business,

f. Amounts in joint accounts acquired by reason of the death of the other joint owner,

g. Unreimbursed medical expenses which have been paid within the past 12 months, under certain conditions,

h. Certain educational expenses, i. Children’s income under certain conditions. j. Prospective, annualized, recurring medical expenses (insurance

premiums, cost of home care, adult day care, nursing home facility) expected to be paid within the next 12 months can reduce the countable income.59

4. Changes in a pensioner’s income may reduce or eliminate an award.

a. Situation: a veteran has a running award. The veteran wins $15,000 in the lottery. The VA discontinues the award the first day of the month after the month in which the veteran won the lottery because the IVAP exceeds the MAPR.

b. Situation: a veteran is receiving Improved Pension of $599 per month, based on an IVAP of $9,319. The veteran receives social security payments of $16,555 per year but has continuing medical expenses of $7,730 per year. Effective December 1, 2004, the annual rate of SS goes up to $16,994 because of the COLA. This increases IVAP to $9,773 and reduces the veteran’s monthly rate of pension to $598 from January 1, 2005.

Net Worth

1. The veteran’s net worth must be less than an amount set by the VA. No specific

dollar amount can be designated as excessive net worth. The VA considers the facts and circumstances in each case.60 The VA makes a formal administrative net worth decision if the veteran or beneficiary has net worth in excess of $80,000, whether or not the net worth bars entitlement.61 In the case of the Improved Pension, the VA considers the veteran’s assets, those of his or her spouse and that of the veteran’s or surviving spouse’s child.62

2. The impact of net worth on the veteran’s benefit is based on the veteran’s life expectancy. The VA’s programs are intended to give beneficiaries a minimum level of financial security, not to protect substantial assets or build up the

59

38 CFR §3.272(g). 60

M21-1MR, Part V, Subpart iii, Chapter 1, Section J, a. 61

M21-1MR, Part V, Subpart iii, Chapter 1, Section J. b. (In some cases, net worth less than $80,000 may be a bar to entitlement.) 62

38 CFR §3.275; M21-1MR, Part V, Subpart iii, Chapter 1, Section J, g.

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beneficiary’s estate for the benefit of heirs. One factor in the VA’s determination is whether or not the veteran or beneficiary’s property can be readily converted to cash to provide support to the veteran or beneficiary.

3. Changes in a veteran’s (or spouse’s) net worth may result in discontinuance of the pension.63 Below are some examples of changes in a veteran’s net worth that resulted in adjustments to the Improved Pension.

a. Situation: A veteran with a running award owns a painting by an artist, valued at $30,000. The artist dies and the value of her works increases dramatically. The veteran now owns a painting worth $100,000. The VA uses VA Form 21-8049, Request for Details of Expenses, to obtain information on the veteran’s financial status and learns of the painting’s increased value. The VA determines that the veteran’s net worth is excessive as of the date of death of the artist. The VA terminates the pension as of January 1, of the year following the discovery of the value of the painting. If the veteran failed to disclose asset information, and the VA later determines that the veteran’s net worth was excessive at the time of the pension award, the VA may recapture the amount of pension paid.64

b. Situation: In October 2005, a veteran with a running award wins $100,000 in the Irish Sweepstakes. On November 1, 2005 the pension is stopped because the veteran’s IVAP is projected to exceed the maximum annual pension rate (MAPR). On November 11, 2006, the veteran re-opens the claim and claims no income from any source. Upon inquiry, the veteran says she still has the $100,000 but keeps it under her mattress. The VA then disallows the claim for excessive net worth. On December 27, 2006, the veteran is burglarized and loses the $100,000 that was under the mattress. The veteran re-opens her claim on January 24, 2007. Assuming that the veteran still has no income, the VA will award a pension effective December 27, 2006.

DEPENDENTS’ AND SURVIVORS’ BENEFITS

Dependency and Indemnity Compensation (DIC) DIC is a monthly payment made:

1. To a surviving spouse, child, or parent because of a service-connected death that occurred after December 31, 1956,

2. To a surviving spouse, child, or parent because the veteran had been rated as totally disabled due to a service-connected disability prior to his/her death, typically for at least ten years,

63

38 CFR 3.660(a) 64

Ibid, see also M21-1MR, Part V, Subpart iii, Chapter 1, Section J, 68. B.

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3. To a surviving spouse, child, or parent because of death due to VA medical

treatment per 38 U.S.C. § 1151, or

4. Because a surviving spouse, child, or parent elects DIC in the case of a service connected death that occurred before January 1, 1957.

5. The surviving spouse must meet the following requirements: a. Was married to a servicemember who died on active duty, active duty for

training, or inactive duty training, or b. Was validly married to the veteran before January 1, 1957, or c. Married the veteran within 15 years of discharge from the period of military

service in which the disease or injury that caused the Veteran’s death began or was aggravated, or

d. Was married to the veteran for at least one year, or e. Had a child with the veteran, and f. Cohabited with the veteran continuously until the veteran’s death or, if

separated was not at fault for the separation, and g. Is not currently remarried.

Surviving spouses are entitled to additional DIC or death pension for the veteran’s

children.65 The children must not be included on the surviving spouse’s DIC, must be unmarried and must be under age 18 or between the ages of 18 and 23 if attending school.

Death Pension

A Death Pension is a benefit paid to a surviving spouse or child in the event of a veteran’s non service-connected death. Pension eligibility requires the veteran to have met certain service requirements pertaining to length of service and service during a period of war, and requires the beneficiary to have certain income and net worth limitations.66 The VA looks at “countable income” for pension eligibility. Countable income includes earnings, disability and retirement payments, interest and dividends, and net income from farming or business. Some income is excluded, such as income from Social Security. Certain expenses are deducted from countable income, such as the surviving spouse’s education expenses and un-reimbursed medical expenses. Civilian Health and Medical Program (CHAMPVA)67 CHAMPVA is a medical insurance program for a spouse, surviving spouse, or child of an eligible sponsor, who is not otherwise TRICARE eligible.68 CHAMPVA is health care provided by civilian doctors and in civilian hospitals, not by the VA.

65

38 CFR §3.23, §3.57 and §3.356; M21-1MR, Part IX, Subpart I, Chapter 4. 66

38 CFR § 3.3(b). 67

Supra note 65. 68

38 CFR §3.50, §3.52, §3.53, §3.55, §3.57 (except subsection (d)), §3.58 and §17.271.

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CHAMPVA Eligibility

To be eligible for CHAMPVA, an individual must be

1. The Spouse or child of a veteran rated as 100% permanently and totally disabled by the VA for a service-connected disability,

2. The surviving spouse or child of a veteran who a. Died from a VA-rated SC disability, or b. At the time of death was rated 100% permanently and totally

disabled, or c. The surviving spouse or child of a military member who died in the

line of duty, not due to misconduct.

By law, the CHAMPVA program must track the TRICARE provisions closely. BURIAL BENEFITS Veterans, who have been discharged under conditions other than dishonorable, are entitled to burial in a National Cemetery. Upon request, the VA will furnish, at no charge to the applicant, a government headstone or marker for the unmarked grave of any deceased eligible veteran. Use VA Form 40-1330, Application for Standard Government Headstone or Marker. Burial in a VA national cemetery is available to eligible veterans, spouses and dependents at no cost and includes the gravesite, grave-liner, opening and closing of the grave, a headstone or marker, and perpetual care as part of a national shrine. Surviving spouses who died on or after January 1, 2000 do not lose eligibility for burial in a national cemetery if they remarry. Unmarried dependent children, who are under 21 or under 23 if a full-time student, are eligible for burial. Veterans, active duty service members and retired Reservists and National Guard are eligible for an inscribed headstone or marker for their unmarked grave at any cemetery. For veterans, benefits may include a burial flag and military funeral honors.

The VA will provide, at no cost, a United States flag, to drape the casket of eligible veterans. Generally, the flag is given to the next-of-kin as a keepsake after the funeral. Apply by using VA Form 21-2008, Application for United States Flag for Burial Purposes.

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OTHER BENEFITS

Medical Treatment Veterans who do not have a service-connected disability or who are not currently

rated by the VA may receive hospital care and domiciliary care under certain conditions.69 A veteran’s character of discharge may bar eligibility for medical treatment.70 It is helpful to understand that the military services have been discharging many young soldiers, sailors and Marines under Other Than Honorable conditions, for “willful and persistent misconduct” or for “adjustment disorder”. Discharges for adjustment disorder have risen from 1,452 in 2006 to 3,840 in 2009. 71 The characterization of discharge as Other than Honorable would bar the veteran from receiving medical care except for those conditions that are service-connected.72 In many of these cases, the misconduct is a direct result of PTSD or Traumatic Brain Injury (TBI). The attorney may challenge a denial of benefits with sufficient information regarding the military service and an incident(s) that would provide a documented PTSD stressor.

The veteran may file the VA Form 10-10EZ to apply for health benefits. Education and Training (GI Bill)73 Vocational Rehab Home Loan Guarantee Life Insurance

THE CLAIMS PROCESS

The first stage of the claims process is where the attorney can provide the greatest service to the veteran.

Intake Process

1. Determine the status of the claimant. Is the claimant the veteran or is the claimant a spouse or child of a deceased veteran?

2. Determine the veteran’s marital status and whether he or she has dependent children. Ask the veteran to provide a marriage certificate, and birth certificate(s) of children. If the veteran and spouse are separated, determine the reason for the separation in the case of a spouse applying for benefits. If the veteran is

69

38 U.S.C. 1710(a)(1), 38 CFR 17.46, 17.93 and 17.161. 70

38 CFR §3.12. 71

http://www.militarytimes.com/article/20131011/NEWS/310110027/Adjustment-disorder-may-now-net-disability-pay. 72

38 CFR §3.360(a). 73

https://gibill.custhelp.com/app/answers/detail/a_id/947/session/L3RpbWUvMTM5MDkyNzU0NS9zaWQveTFpTHZ3TGw%3D.

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currently married, and one or both of the parties has been previously married, get the names of previous spouses and the dates and places of all divorces.

3. Determine the basic information regarding the veteran’s military service. This includes dates of entry into the service (also called the Pay Entry Base Date or PEBD), dates of release from active duty, military occupational specialty, units assigned to (if the veteran can remember), overseas service, any medals awarded, and whether the Veteran served on the ground in Vietnam or Southeast Asia during Desert Shield/Desert Storm.

4. Determine whether the veteran has his/her Certificate of Discharge (dd214) or equivalent evidence of active duty service from the Reserve component. The VA requires an original dd214 or a certified copy. However, it appears under the new VONAPP electronic claims filing system that a PDF of the dd214 may be submitted. If the veteran has his/her original, the VA will return it. However, it is better to have the veteran record the original with the Clerk and Recorder of the county where s/he lives and then get a certified copy from the Clerk to submit to the VA.

5. If the veteran presents a dd214, determine whether the veteran is eligible for benefits based on the character of discharge. If the claimant only presents an NGB 22, ask him whether he was activated for Bosnia, Iraq, Afghanistan or any other duty under Title 10 orders. If he says “yes”, then he should be able to produce a dd214.

6. Ask the veteran whether s/he has all of the relevant military, VA and civilian medical records that would substantiate a claim for compensation or pension. This includes a current diagnosis from a VA or private physician. In the case of a claim for service-connected PTSD, the VA requires a diagnosis from either a VA provider or a diagnosis from a licensed psychiatrist. One of the problems facing a number of Army Vietnam veterans is the lack of official records.

7. On July 12, 1973, a fire at the National Personnel Records Center (NPRC) destroyed approximately 80% of the records for Army personnel discharged between November 1, 1912 and January 1, 1960, and 75% of the NPRC records held for veterans with surnames beginning with Hubbard and running through the end of the alphabet and who were discharged from the Air Force between September 25, 1947 and January 1, 1964.74 In this case, have the veteran sign a National Archives form NA13055, Request for Information Needed to Reconstruct Medical Data. Send this form in with the claim and an explanation of the need for the records.

8. If the veteran has all of necessary documents, have the veteran file a 21-526EZ or 21-527EZ as appropriate. These are the forms used for the Fully Developed Claim process.

74

M21-1MR, Part III, Subpart iii, Chapter 2, Section E, 26.

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9. Determine whether the veteran has already appointed a VSO as his/her

representative.

10. If the veteran does not have the necessary information, send in a letter with his/her signature, establishing an informal claim, then do the following:

Gathering Information

1. Have the veteran complete the VA Form 21-22a Appointment of Representative (POA) naming you as the representative, and file it with the VARO. Request the veteran’s VA records, called the “C-file” if the claim is for an increase of existing benefits or the veteran is appealing a denial of benefits. The VA takes some time to process these documents.

2. Get the dd214 from eVetRecs. This online request system is available on the VA’s website and on the National Archives website. However, it still requires the veteran to sign the request and mail it in. If your browser doesn’t allow you on to the site, have the veteran complete an SF 180 Request Pertaining to Military Records, and file it with the appropriate holder(s) of military records. Only request a copy of the dd214 at this time. The VA has a duty to request all of the veteran’s military records. If you request the records from NPRC, the file is pulled and the VA does not have access to the file until the previous request has been fulfilled. This slows down the claims process. If the veteran has been out of service for a lengthy period of time, the veteran’s military treatment records (if they exist) will be at the VA. Otherwise, the records will be with the appropriate military service. The NPRC sends the records fairly quickly (often in less than two weeks). The military services are a bit slower. Any initial claim for benefits submitted to the VA must have the dd214 attached to the file. Many veterans, especially those who are applying for pension, do not have their dd214s. Members of the National Guard and Reserve receive a dd214 when they are released from active duty after being activated, e.g. Iraq or Afghanistan. However, if they haven’t served on active duty, they will get an NGB22 (Report of Separation and Record of Service), or an NGB23 (Retirement Credits Record), if they served at least 20 years in the National Guard or Reserve. The NGB22 is equivalent to the dd214 for purposes of retirement benefits but not for VA benefits. If all the servicemember has is an NGB22, he or she, more likely than not, will not be a “veteran” for VA purposes. All records should be at the National Personnel Records Center in St. Louis, but it is advisable to send a copy of the SF 180 to the state where the veteran was a member of the National Guard. Many veterans today have served on active duty in several military services as well as in the National Guard and/or Reserves. They may have also served in the National Guard or Reserves of several states. It is important to gather all of the veteran’s military records from all sources.

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3. Have the veteran file a medical records release and provide you with all medical providers that s/he has seen for the specific ailments. This is especially important if the attorney wants to use the VONAPP system.

4. For purposes of service-connected compensation, have the veteran provide a chronological history detailing where and when the injury occurred, any aggravation of the injury since the veteran was discharged and the specific medical providers who saw him/her for the injury(ies). This is the “nexus” information that ties the veteran’s military service to the current disability. Ask the veteran if s/he kept any records from visits to battalion aid stations (BAS), troop medical clinics (TMCs), base hospitals, etc. These documents can be critical to a quick resolution of a claim for service-connected disability. The information from the veteran may be sufficient to file an informal claim while waiting for the medical records to arrive.

5. Have the veteran provide you with statements from friends, relatives, employers and colleagues regarding their observations of the veteran’s disabilities. If the veteran has pictures of himself with the injury, get those pictures. For example, a veteran hit by a Vietnamese jeep in Vietnam is shown in a contemporary picture in a cast and bandage being held up by a Vietnamese civilian.

6. Be aware of the possibility of a Traumatic Brain Injury (TBI). Some of the symptoms of TBI are slowness of speech, forgetfulness, complaints of headaches, vision problems, balance problems, etc. Although these symptoms may be indicative of other diseases, the veteran should be examined by a neurologist to ensure that a TBI is not overlooked. The veteran may qualify for Servicemembers’ Group Life Insurance Traumatic Injury Protection Program (TSGLI). This program pays benefits for qualifying injuries incurred during the period October 7, 2001 to November 30, 2005, regardless of the geographic location where the injury occurred.75 With servicemembers still in combat in Afghanistan, it is somewhat disconcerting that the benefits are limited to a single four year period that terminated before our servicemembers left Iraq and while they are still in Afghanistan. This is a claim that does not require attorney accreditation. The claim goes directly to the veteran’s branch of service, e.g. Marine Corps.76 There are valuable resources in the Denver metropolitan area to help the attorney file a TSGLI claim. An excellent resource is Rocky Mountain Human Services (formerly Denver Options), which has an expert on filing these claims.

7. The VA has recently developed a series of Disability Benefits Questionnaires.77 These are forms for medical providers to complete that detail the diagnosis for each claim that the veteran is submitting. If the veteran has been seen by non-VA doctors, provide him with the appropriate DBQs. These forms were

75

https://insurance.va.gov/sglisite/TSGLI/Retro.htm 76

https://insurance.va.gov/sglisite/forms/SGLV-8600(12-2011).pdf 77

http://www.benefits.va.gov/compensation/dbq_ListByDBQFormName.asp

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developed because many veterans just had exam notes or letters from their doctors which didn’t use the appropriate language from 38 C.F.R. Part IV for the VA to grant the claim. This led to substantial delay and frustration on the part of the veteran. Many veterans are finding that their own medical providers are reluctant to fill out these forms when they find out that it is for the VA. Encourage the veteran to convince his or her physician to complete the forms and return them to the attorney.

FILING THE CLAIM The Veterans Administration has substantially enhanced the claims filing process for veterans who are filing claims for compensation, pension, or both. The Internet has made things much simpler for those who have access to it. The Veterans Online Application (VONAP)78 is an excellent resource. Unfortunately, many veterans, especially those who qualify for pension, don’t have access to the Internet or may not have the mental capacity to operate in a computer environment. In many cases, the veteran is homeless or has limited means and often doesn’t have transportation to get to the attorney’s office. Meeting in a local library or coffee shop that has an Internet “hotspot” may be the attorney’s only way to help the veteran process an online claim. The VONAPP process requires that the veteran bring in all of his or her military information, medical records (both civilian and VA). This online filing system is well developed but it logs the user out after 15 minutes of non-use. The attorney will be frustrated if s/he attempts to use VONAPP and the veteran doesn’t have all of the required information readily available. In these cases, use the standard paper claim form, VA Form 21-526, Veterans Application for Compensation and/or Pension. If the information isn’t readily available, the attorney or veteran may log out and access the partially completed application within 30 days.

The VA has also developed the Fully Developed Claim Program (FDC) to speed up the claims process.79 Claims under this process require the use of the VA Form 21-526EZ for compensation claims and the VA Form 21-527EZ for pension claims. These forms provide the Veterans Claims Assistance Act notification requirements at the time of filing rather than after the claim has been filed. The FDC Program requires that a veteran complete and submit a Fully Developed Claim Certification along with one of the above forms. The certification states that the veteran is submitting all of the information that will support his/her claim. This includes all relevant military records, military treatment records, VA treatment records and other medical records from any federal agency or obtained through an employer.80

Regardless of the form used, the veteran may establish a claim date by filing an informal claim.81 The general rule for an original claim for benefits is that the effective

78

https://www.ebenefits.va.gov/ebenefits-portal/ebenefits.portal?_nfpb=true&_portlet.async=false&_pageLabel=ebenefits_myeb_vonapp1 79

http://benefits.va.gov/transformation/fastclaims/FDC_Flyer.pdf 80

Ibid. See also certification form attached to the VA Form 21-526EZ and VA Form 21-527EZ. 81

http://benefits.va.gov/transformation/fastclaims/

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date is the date the VA receives the claim.82 An informal claim may be submitted and signed by the veteran’s representative.

The Informal Claim includes the following statement in the form of a letter:

“I intend to apply for compensation/pension benefits under the FDC Program. This statement is to preserve my effective date for entitlement to benefits. I am in the process of assembling my claim package for submission.”

The Informal Claim must also be accompanied by:

a. the claimant's name (if other than the Veteran) b. the Veteran's name c. the Veteran's claim number (This is the service number for most veterans)

By filing an informal claim, the veteran gives himself/herself time to gather all of the relevant information prior to filing the formal claim. The veteran also establishes a date of claim which the VA will use to determine when payments are to start or should have started. In the case of a veteran who has a service-connected disability with a high rating, this may result in a substantial payment of past due benefits to the veteran.83

Upon receipt of a substantially complete application, the VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.84 If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice.85

PRESUMPTION OF SERVICE-CONNECTION FOR VETERANS WITH CERTAIN DISEASES86

The VA may presume that certain current disabilities were caused by service, even if there is no specific evidence proving it in a particular claim. For the following veterans, disability is presumed if they have certain diseases:

82

38 USC §5110(a); 38 CFR §3.400; M21-1MR Part III, Subpart ii, Ch 2, Section B.7.i. 83

38 CFR §3.400 84

38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 CFR § 3.159 (2011); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 85 Shinseki v. Sanders, 129 S.Ct. 1696 (2009). 86

38 CFR §3.307, M21-1MR, Part IV, Subpart ii, Chapter 1; See Federal Register/Vol. 74, No.9, Wednesday, January 14, 2009/ Proposed Rules, p. 2016

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a. Former prisoners of war; b. Veterans who have certain chronic or tropical diseases that become

evident within a specific period of time after discharge from service; c. Veterans who were exposed to ionizing radiation, mustard gas, or Lewisite

while in service; d. Veterans who were exposed to certain herbicides, such as those who

served in Vietnam, e.g. Agent Orange87; or e. Veterans who served in the Southwest Asia Theater of operations during

the Gulf War. f. Current veterans of Iraq/Afghanistan who have a diagnosis of PTSD.88 g. Vietnam veterans who have a VA diagnosis of PTSD.

6. If the veteran does not qualify for a service-connected disability, have the veteran complete the income and net worth portions (Parts VIII and IX) of the VA Form 21-526 Veteran’s Application for Compensation and/or Pension. 7. If the claimant is a spouse of a deceased veteran, have the spouse complete the VA Form 21-534, Application for DIC or Death Pension by a Surviving Spouse or Child.89 8. If the claimant is in a nursing home, complete the VA Form 21-0779 Nursing Home Information for Aid and Attendance. 9. If the case is a hardship case, e.g. a homeless veteran, make sure the application for benefits has a statement attached that the veteran is homeless, and then follow up with the RO after the claim has been filed.

WHAT HAPPENS NEXT?

The Veterans Service Center (VSC)

The VA has changed its claims process as a result of the initiative to reduce the current backlog of claims and appeals.90

Once the claim has been submitted, the veteran and the representative will receive one of several notifications:

(1) A letter of award, called a “Decision Notification Letter” with a rating (10% to 100% in 10% increments, or in the case of a claim for pension or DIC, an award

87

38 CFR §3.307(a)(6)(iii, “Service in the Republic of Vietnam” includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam”; 77 Fed. Reg. 76170, 12/26/2012. 88

38 CFR §3.304(f); 38 CFR §4.125; M21-1MR, Part IV, Subpart ii, Chapter 1, Section D, 13, a. 89

M21-1MR, Part V, Subpart iii, Chapter 1, Section A, 2. 90

Http://benefits.va.gov/transformation/docs/VA_Strategic_Plan_to_Eliminate_the_Compensation_Claims_Backlog.pdf

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of an amount up to the MAPR or the amount of the DIC), a full explanation of which claims were granted, the amount of the rating for each claim and an explanation of how the VA arrived at the rating. This letter will also tell the veteran the amount s/he will be receiving per month and the amount of back benefit that will be paid from the date of the claim. The letter may also include claims that were denied and an explanation of the reason(s) for denial. The letter of award will provide an explanation of the Veteran’s right to disagree91 and include an explanation of how the veteran (attorney) may file a letter called a Notice of Disagreement (NOD). This is the first step in the appeals process. (2) A letter telling the veteran that the VA is still processing the claim and requires more information. It is very important that the attorney or the veteran collect and provide the required information to the VA. The VA is very good at telling the veteran exactly what information is required. (3) A Decision Letter denying the claim in its entirety. This letter will provide the veteran with the reasons for the denial and provide the same information regarding the veteran’s right to appeal.

APPEALS

The NOD is the first level of appeal. It is handled locally, or by the Regional Office of Original Jurisdiction. Although no specific wording is required, the NOD should state that the veteran disagrees with the decision and provide specific reasons for the disagreement. The VA has developed a new NOD form for use by claimants and attorneys.92 It is recommended that when completing the new form, the attorney indicate that all communication between the VA and the claimant should go through the attorney representative. Always ask for a DRO review and a hearing. State that if the NOD fails to resolve the issues in favor of the veteran that the DRO should issue a Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC) so that the veteran can proceed to an appeal before the Board of Veterans Appeals. If there was a Clear and Unmistakable Error (CUE)93 the attorney should provide information concerning the error in the NOD. 94 The NOD must be filed within 60 days of the date the VA mailed the notification of decision to the veteran in a contested case (e.g. a fee disagreement) or within one year for all other claims that have been denied.95 The attorney or the veteran may request a hearing as part of the NOD. If the NOD is not timely filed, the VA will notify the attorney and the veteran in writing that the decision was final at the expiration of the applicable time limit and that the decision as to whether an appeal is timely filed is appealable.96 The Regional Office (RO) will review the NOD and may ask for further information. The veteran may request a hearing before a

91

VA Form 4107 92

VA Form 21-0958 93

38 CFR §3.105(a); M21-1MR, Part III, Subpart iv, Chapter 2, Section B. 7. 94

For more information on what constitutes an NOD, see 38 CFR 20.201. 95

M21-1MR, Part I, Chapter 5, Section B. 4.a. 96

Ibid at 5.c.

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Decision Review Officer (DRO).97 A hearing may be conducted in person or by video conference.98 These hearings are non-adversarial in nature.99 It is in the best interest of the veteran for the attorney to request a DRO review and request a face-to-face hearing. The veteran is often the best advocate for his claim, especially when there has been a denial decision based on the VA’s opinion that it can’t substantiate the veteran’s claims. When the veteran can appear live before the DRO and state with certainty where he was, what happened, what medical care he received and his current symptoms, it gives the DRO a personal connection to the claimant.

If the veteran is homeless, make sure that the RO is aware of the fact and puts a

“homeless” flag on the file. Call the VA’s homeless veteran coordinator and make him or her aware of the fact. If you disagree with the VA’s determination that the NOD was not adequate or timely filed, appeal the decision.100

Once the Regional Office has received the NOD, it will send the attorney and the

veteran an Appeal Process Request Letter.101 This letter provides two options for appeal: A Decision Review Officer (DRO) assigned to the case, or the traditional appeal process. The election of the method of appeal must be filed within 60 days of the date of the Appeal Process Letter.

The second level of review is with the DRO, if the veteran has elected to go that

route. Once the veteran has elected the DRO Process, the veteran and attorney will receive a Decision Review Process Letter.102

The DRO is a senior technical expert who is responsible for holding post-

decisional hearings and processing appeals. The DRO is a member of the Appeals Team but works under the direct supervision of the Veterans Service Center Manager S/he will review the entire claims folder, including any statements, evidence, arguments and new information provided by the veteran’s representative. The DRO has jurisdiction over all aspects of the issue.

The DRO then issues a new decision. Unless a CUE exists, the DRO cannot

revise the decision in a manner that is less advantageous to the appellant than the decision under review.103 The DRO cannot bargain with the veteran or his/her representative by requesting or requiring him/her to withdraw a claim or take any action, in exchange for the granting of any benefit.104

97

38 CFR §3.103(c). 98

M21-1MR, Part I, Chapter 4, 1.a. 99

Ibid, note 56 at 2.a. 100

38 CFR §19.28 and $19.34 101

M21-1MR, Part I, Chapter 5, Section B., Exhibit 1. 102

Ibid at Exhibit 2 103

38 CFR §3.103(c)(1); M21-1MR, Part I, Chapter 5, Section C, 12.e. 104

Ibid Section C, 12.h.

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The DRO has the authority to grant benefits based on clear and unmistakable error, de novo review, or the receipt of new and material evidence.105 The DRO may hold an informal conference or conduct a traditional hearing.

An informal conference may be conducted in person at the RO of jurisdiction or

an RO nearest to the appellant’s residence, by telephone or by video conference. The purpose of the informal conference is to clarify the issues the appellant wishes to appeal; provide explanations, and identify additional sources of pertinent information.

The DRO notifies the veteran and the attorney of the decision. If the DRO has

denied the benefits requested or if the DRO has made a decision that awards benefits in part, the DRO will send the appellant/veteran/representative a Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC) in the event that the veteran or his/her representative files new information. A SOC is an explanation of the decision made on the appellant’s case and provides the appellant with a complete understanding of the decision so the appellant can prepare an effective, substantive appeal with specific allegations of errors of fact or law.106

The DRO will issue an SOC

1. If the appeal cannot be satisfied 2. After review of the claims folder and all necessary development 3. When the NOD has not been withdrawn, or 4. When the appropriate response time has passed.107

The DRO will provide another VA Form 9 Appeal to Board of Veterans’

Appeals.108 If the veteran is still unsatisfied, the veteran may follow the traditional appeal

process to the Board of Veterans Appeal (BVA). BOARD OF VETERANS’ APPEALS The Board of Veterans’ Appeals has jurisdiction over appeals arising from RO decisions, VA Medical Centers, the National Cemetery Administration and the Office of General Counsel. 96% of appeals involve claims for disability benefits or survivor benefits.109 The BVA consists of “decision teams” and at the present time has 64 Veterans Law Judges110 who handle the appeals through document review, in person appearance in Washington or video conference.

105

Supra note 62. 106

M21-1MR, Par I, Chapter 5, Section D, 18.a. 107

Ibid. 108

http://www.va.gov/vaforms/va/pdf/VA9.pdf 109

Report of the Chairman, Board of Veterans’ Appeals, Fiscal Year 2012 at 3, available at http://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2012AR.pdf. 110

Ibid.

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Substantive Appeal Process The substantive appeal process is the next level of review. A substantive appeal may be filed in any one of the following three forms:

1. A completed VA Form 9 Appeal to the Board of Veterans’ Appeals;

2. Written correspondence containing:

a. An indication that the appeal is being perfected as to all of the issues laid out in the SOC or subsequent SSOCs,

b. Specific identification of the issues being appealed, c. Specific arguments relating to errors of fact or law made by the agency of

original jurisdiction and to the extent possible, the arguments should relate to specific items in the SOC and any subsequent SSOCs.

3. A statement made at a formal hearing or informal conference that has been reduced to writing.111

The VA Form 9 must be filed with the VA within one year from the date of

mailing of the Notice of Decision or 60 days from the date the VA mailed the SOC. The VA Form 9 is sent to the RO, not directly to the BVA. For more information in plain language, the VA provides a pamphlet entitled “How Do I Appeal” at http://www.va.gov/vbs/bva/pamphlet.htm. When completing the VA Form 9, be clear -whether the appellant is requesting a RO hearing in addition to a BVA hearing or in place of a BVA hearing. One of the issues that the author has come across is that veterans don’t read the entire package of material that the VA sends out with the denial letter. As a result, the VA-9 doesn’t get filed within the time required and the veteran loses his appeal rights. Another misstep is that a number of VSOs don’t bother to ask for a DRO hearing in addition to a hearing before the Board of Veterans Appeals.

When the substantive appeal is received by the RO, the DRO is responsible for

reviewing the appeal and certifying that it is ready for review by BVA. Proper review includes verification that all issues on appeal have been decided and discussed, and that appropriate development has been initiated and disposed of properly. The VA may send the appellant a notification letter dismissing the appeal under 38 CFR §20.202 for failure to file a properly completed substantive appeal. This notification may also be appealed.112

Prior to transmitting the appeal to the BVA, the DRO sends the veteran’s

representative a VA Form 646, Statement of Accredited Representative in Appealed cases.113 This form gives the appellant’s representative an opportunity to review the

111

M21-1MR, Part I, Chapter 5, Section E, 22.b. 112

M21-1MR, Part I, Chapter 5, Section F, 22.c. 113

http://www.va.gov/vaforms/va/pdf/VA646.pdf

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appeal and submit a statement regarding the appeal.114 There are time limitations for this form to be filed with the VA so it is critical that the “Reply Requested by [date]” is followed. The normal range is five to eight days.

Finally, after all appropriate review of the file has been completed and requests

for additional information and the VA Form 646 have been received and reviewed by the DRO, the file is transferred to the BVA. The VA dockets the appeal with the BVA once it has received the VA Form 9. The BVA sends a docket notification letter to the veteran (attorney) that the appeal has been added to the docket and that all appeals will be considered in docket number order. The notification will provide the docket number and some additional information regarding the appeal process. The Appeal form allows the appellant to request an optional BVA hearing and to state which issues the veteran wishes to appeal. If the veteran requests a hearing at the local VA office, it may take some time to schedule. Recent information from the Denver RO indicates that there are no longer any travelling boards due to budget restrictions. Videoconference hearings are still available.

The videoconference hearing is informal. The attorney and the veteran will

appear at the Denver RO, or another VA satellite office that has VC capability. The ALJ for the Board appears from Washington, DC. Most hearings are set for one hour.

A copy of one of the author’s recent decisions is attached. In this case, the

veteran is homeless and the appeal was processed in an expedited fashion.

Changes in Representation after Appeal has been Certified Sometimes, a veteran/claimant will change representation in mid-stream. This usually happens when the veteran/claimant has had a VSO as a representative then chooses to hire an attorney for the appeals process at the BVA. When the RO is notified of a change in representation after the certification and transfer of the appeal to BVA, the VA will send a request to BVA changing the representation, along with a copy of the new Appointment of Representative form.115 It is important for the attorney to check with the Regional Office to ensure that the new VA Form 21-22a has been received and transmitted to BVA. An appellant may change his or her mind regarding the request for a hearing. The appellant may submit a request for hearing on an appeal within 90 days or the mailing of notice that an appeal has been certified and transferred to BVA, or until the date the appellate decision is established by the BVA, whichever comes first.116

114

M21-1MR, Part I, Chapter 5, Section F, 27.a. 115

38 CFR §20.1304. 116

M21-1MR, Part I, Chapter 5, Section F, 29.g.

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FINALITY OF BVA DECISIONS Unless overruled by the U.S. Court of Appeals for Veterans Claims (CAVC), a BVA decision is final for claims for benefits other than insurance, except when, in the opinion of the BVA, a contrary conclusion is justified on the basis of official information furnished by the service department. ROs do not have the authority to overturn BVA decisions in the absence of new and material evidence.117 The BVA may remand an appeal to the RO. A remanded appeal is one that has been returned to the RO for:

1. Development of additional evidence, 2. Due process, or 3. Reconsideration of issues.118

A remanded appeal mandates that the RO give special attention and expeditious

processing to the file.119 RESOURCES FOR BVA DECISIONS The BVA provides an excellent resource for attorneys who want to review previous decisions on similar issues. The website address is http://www.bva.va.gov. Look at the Search Decisions link.

APPEALING BVA DECISIONs An appellant has 120 days to file a Notice of Appeal (NOA) in writing with the Clerk of the Court for the Court of Appeals for Veterans Claims. The appellant may also file a Motion for Reconsideration (MFR).120 COURT OF APPEALS FOR VETERANS CLAIMS (CAVC)121 The CAVC was authorized by the Veterans Judicial Review Act of 1988 to review BVA decision-making. The CAVC’s exclusive jurisdiction is limited to appeals of decisions of the BVA. The standard of review is de novo. The procedures for practitioners are found at http://www.uscourts.cavc.gov/practitioners/.

The CAVC also has a search site for its opinions. Look at http://search.uscourts.cavc.gov/search/.

117

M21-1MR, Part I, Chapter 5, Section G, 33.a. 118

M21-1MR, Part I, Chapter 5, Section G, 34.a. 119

Public Law 103-446, Veterans Benefits Improvement Act of 1994. 120

M21-1MR, Part I, Chapter 5, Section G, 33.c 121

http://www.uscourts.cavc.gov/documents/FY_2011_Annual_Report_FINAL_Feb_29_2012_1PM_.pdf

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Appeals to the CAVC are paper review, although the Court may request oral argument but it is not a normal procedure. Attorneys may petition for fees through the Access to Justice Act but attorneys’ fees are capped at an hourly rate. In fiscal year 2011, there were 3,948 appeals filed with the Court. 54% were pro se at the time of filing. There were 137 petitions filed (61% pro se at time of filing). 2,537 applications were filed under the Equal Access to Justice Act (EAJA). There were 2,570 EAJA applications that were granted, 15 denied and 10 dismissed.

U.S. COURT OF APPEALS, FEDERAL CIRCUIT After CAVC, the next level of appeal is to the U.S. Court of Appeals, Federal Circuit. The Court’s jurisdiction, as applying to VA claims is limited to appeals of CAVC decisions and direct challenges to VA regulations and policies of general applicability. UNITED STATES SUPREME COURT The final level of appeal is to the U.S. Supreme Court.

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Chapter II

Advanced Concepts of Representation

Agent Orange and Nehmer cases Unlike the obvious injuries displayed by many servicemembers of Iraq and Afghanistan who have experienced gunshot wounds, blindness and loss of limbs from IED attacks, RPGs and mortars, Vietnam veterans have experienced many illnesses that can’t be directly tied to combat but can be tied to exposure to herbicides while in Vietnam. Many of these illnesses appeared long after their tours in-country ended. The legal history of veterans’ challenging the VA for denial of disabilities related to herbicide exposure in Vietnam is painful and shameful. These legal challenges are called the Nehmer Cases. In fact, the U.S. Court of Appeals for the Ninth Circuit stated in Nehmer IV122 “This case involves our government’s treatment of its veterans who contracted serious ailments as a result of their exposure to Agent Orange in the course of the military’s use of that toxic chemical as a defoliant during the Vietnam War. It is a disturbing story, and the performance of the United States Department of Veterans Affairs (VA) has contributed substantially to our sense of national shame.” (Italics added). Agent Orange (which is no longer manufactured) was not a single chemical but a cocktail of various chemicals, of which Dioxin (2,3,7,8-Tetrachlorodibenzodioxin) was the most toxic element. Dioxin is toxic over a long period. It does not degrade easily and depending on where it is found, has varying half-lives. In humans, the half-life is estimated at 11-15 years and in the ground the half-life can be more than 100 years.123 In 1984, Congress passed the “Veterans’ Dioxin and Radiation Exposure Compensation Standards Act”.124 Congress found that the VA had not promulgated permanent regulations setting forth “guidelines, standards, and criteria for adjudication of claims for Veterans” Administration disability compensation based on exposure to herbicides containing dioxin or to ionizing radiation.”125 Congress was concerned about the possible long-term effects of exposure to herbicides containing dioxin long before the VA acknowledged such links.126 The “purpose of the Act was to “ensure that disability compensation is provided to veterans ‘for all disabilities arising after [service in Vietnam] that are connected, based on sound scientific and medical evidence, to such service.’”127 In 1986 the VA issued a final regulation that veterans do not have to prove that they were exposed to Agent Orange. Rather, any veteran who served in Vietnam is 122

Nehmer v. United States Department of Veterans Affairs, 494 F. 3d 846 (9th Cir. 2007)(“Nehmer IV”)

123 http://www.agentorangerecord.com/information/what_is_dioxin/.

124 Public Law 98-542 (October 24, 1984).

125 Ibid at Sec. 2 (11).

126 Supra, note 121.

127 Nehmer v. U.S. Veterans Admin., 32 F.Supp.2d 1175, citing Nehmer I (N.D. Cal. 1999)(“Nehmer II”).

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automatically “presumed to have been exposed to an herbicide containing dioxin.128 However, subsection (b) of that regulation only recognized one disease – chloracne – to be sufficiently linked to exposure to AO as to qualify for service-connection.129 In 1986, the National Veterans Legal Services Program130 initiated a class action lawsuit on behalf of all Vietnam veterans and their survivors who had been denied VA benefits for conditions the veterans believed to be associated with exposure to herbicides or who would possibly have a claim in the future.131 As a result of prevailing in Nehmer I, the plaintiffs negotiated a consent decree with the VA in 1991. The consent decree provided that the VA was required, whenever it recognizes in the future that the scientific evidence shows a positive relationship between Agent Orange exposure and a new disease, to (a) identify all claims based on the newly recognized disease that were previously denied and then (b) pay disability and death benefits to the claimants retroactive to the initial date of claim.132 In response to the lawsuit, Congress passed the Agent Orange Act of 1991133 (“the Act”) which codified the consent decree. Congress told the VA to enter into an agreement with the National Academy of Sciences (NAS) for NAS “to review and evaluate the available scientific evidence regarding associations between diseases and exposure to dioxin and other chemical compounds in herbicides.”134 NAS was to report every two years on its scientific findings.135 Thus began the sordid history of the VA’s failure to observe the consent decree and the Agent Orange Act. Prior to 1996, the VA did not acknowledge that AO caused prostate cancer. In fact, in 1994, the VA issued a regulation denying such a link. Upon newly discovered evidence in 1996 the VA reversed and said that prostate cancer was “service-connected” if linked to exposure to AO. However, the VA again refused to pay benefits back to the date of the original claim. The plaintiff class again challenged the VA and a ruling was handed down in 1999 that the VA had improperly denied benefits to a claimant based on the claimant’s failure to specifically cite exposure to AO in the complaint.136 In 2003, the VA issued a regulation finding Chronic Lymphocytic Leukemia to be associated with AO and thus “service-connected”. However, it failed to adjudicate prior claims or pay benefits to claimants who showed that they had the disease. The reason provided by the VA was that its duty to pay claimants did not apply to diseases that it discovered after September 30, 2002, the original sunset date of the

128

38 C.F.R. 3.311a (1986). 129

Supra, note 124. 130

http://www.nvlsp.org/ 131

Nehmer v. United States Department of Veterans Affairs, 712 F.Supp.1404 (N.D. Cal.1989) “Nehmer I” 132

Statement of Barton F. Stichman, Joint Executive Director of the National Veterans Legal Services Program in testimony before the U.S. Senate Committee on Veterans’ Affairs, March 13, 2013. http://www.veterans.senate.gov/imo/media/doc/Bart%20Stichman%20Testimony%20-%20NVLSP%203-13.pdf. 133

Public Law 102-4. 134

Ibid at Sec. 3. 135

Ibid. 136

Supra note 124.

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Act.”137 However, Congress passed the Veterans Education and Benefits Expansion Act of 2001 (Pub.L. No. 107-103) which continued the VA’s authority to issue regulations designating service-connection for Agent Orange exposure through September 30, 2015 and by implication extended the effective date of the Consent Decree. The plaintiff class filed a motion for clarification and enforcement of the decree in 2004. In 2007 the court handed down a decision in Nehmer IV138, upholding the VA’s duty to adjudicate (and pay for) claims for “any and all diseases that are deemed service connected pursuant to the Agent Orange Act.”139 Finally, the court stated in Nehmer IV “We would hope that this litigation will now end, that our government will now respect the legal obligations it undertook in the Consent Decree some 16 years ago, that obstructionist bureaucratic opposition will now cease, and that our veterans will finally receive the benefits to which they are morally and legally entitled.”140 Agent Orange Claims Today Most of the Vietnam veterans the attorney representative will see today are those who have recently been diagnosed with diseases such as Diabetes Mellitus Type 2, Ischemic heart disease (deficient supply of blood to a body part, such as heart or brain) or prostate cancer. However, there is a possibility that the veteran filed a claim many years ago and the claim was denied prior to the VA determining that such disease was scientifically related to exposure to AO. This situation requires the attorney to determine that the veteran was “boots on the ground in Vietnam” or was in the littoral waters now considered to give presumption, and that the veteran has a current diagnosed illness that is on the presumptive list. If the veteran’s C-file reflects an earlier denial of a presumptive illness, the attorney should proceed under Nehmer for back payments to the date of the initial claim. Current VA Initiatives on AO The VA uses the reports from the National Academy of Sciences and promulgates regulations on new illnesses that NAS deems scientifically related to exposure to AO.141 In 2011 the VA said that claimants with one of the following presumptive illnesses, ischemic heart disease, hairy cell leukemia and other chronic B-cell leukemias, and Parkinson’s disease (added on October 13, 2009 with adjudication starting on October 30, 2010) could get one year of retroactive benefits on new claims if they could show that they experienced one of the conditions since the date of the

137

Supra note 124, Sec. 3(i). 138

Nehmer v. U.S. Dept. of Veterans Affairs, 494 F. 3d 846 (2007). 139

Ibid at 861, 863 and 864. 140

Ibid at 865. 141

See Veterans and Agent Orange Report (2012), National Academies Press http://www.nap.edu/catalog.php?record_id=18395

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regulatory change.142 This means that if you have a Vietnam veteran who walks into your office today with Parkinson’s disease that was diagnosed in 2012, the veteran can get back benefits for one year from the date of the filing of the claim.

Current VA changes to the regulations refer to peripheral neuropathy associated with herbicide exposure. The VA now will not deny a claim for peripheral neuropathy as early-onset peripheral neuropathy solely because the condition persisted for more than two years after the date of the last herbicide exposure.143 This is a condition that the VA will adjudicate under the Nehmer provisions. Current Presumptive illnesses 144 AL Amyloidosis. A rare disease caused when an abnormal protein, amyloid, enters tissues or organs. Chronic B-cell Leukemias (including hairy cell leukemia). A type of cancer which affects white blood cells. Chloracne (or similar acneform disease). A skin condition that occurs soon after exposure to chemicals and looks like common forms of acne seen in teenagers. Under VA's rating regulations, it must be at least 10 percent disabling within one year of exposure to herbicides. Diabetes Mellitus Type 2. A disease characterized by high blood sugar levels resulting from the body’s inability to respond properly to the hormone insulin. Hodgkin’s Disease. A malignant lymphoma (cancer) characterized by progressive enlargement of the lymph nodes, liver, and spleen, and by progressive anemia. Ischemic Heart Disease. A disease characterized by a reduced supply of blood to the heart, which leads to chest pain. Multiple Myeloma. A cancer of plasma cells, a type of white blood cell in bone marrow. Non-Hodgkin’s Lymphoma. A group of cancers that affect the lymph glands and other lymphatic tissue. Parkinson’s Disease. A progressive disorder of the nervous system that affects muscle movement. Peripheral Neuropathy, Early-Onset. A nervous system condition that causes numbness, tingling, and motor weakness. Under VA's rating regulations, it must be at least 10 percent disabling within one year of herbicide exposure.

142

http://www.va.gov/opa/pressrel/pressrelease.cfm?id=2154 143

Fed.Reg. Vol. 78, Issue 173 (Friday, September 6, 2013). 144

http://www.publichealth.va.gov/exposures/agentorange/conditions/index.asp#veterans

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Porphyria Cutanea Tarda. A disorder characterized by liver dysfunction and by thinning and blistering of the skin in sun-exposed areas. Under VA's rating regulations, it must be at least 10 percent disabling within one year of exposure to herbicides. Prostate Cancer. Cancer of the prostate; one of the most common cancers among men. Respiratory Cancers (includes lung cancer). Cancers of the lung, larynx, trachea, and bronchus. Soft Tissue Sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). A group of different types of cancers in body tissues such as muscle, fat, blood and lymph vessels, and connective tissues. For more detailed information see 38 C.F.R. § 3.309(e). Agent Orange Fast Track Claims Processing System Even if the veteran has not filed a previous claim for an AO presumptive claim there are eight presumptive conditions which the attorney can apply for fast track status. They are: Ischemic heart disease, hair cell and other B-cell leukemias, Parkinson’s disease, prostate cancer, chronic lymphocytic leukemia, Hodgkin’s disease, non Hodgkin’s lymphoma and multiple myeloma.145 Illnesses that are Secondary to a Presumptive Illness The attorney representative must be creative in his or her research. Many Vietnam veterans have been denied benefits for illnesses related to AO because the initial claim was worded improperly. For example, a Vietnam veteran diagnosed with Diabetes Mellitus Type 2 (“DM”) files a claim for that and also peripheral neuropathy due to his exposure to AO. However, the peripheral neuropathy doesn’t show up in the medical records until recently. The VA grants the claim for DM but denies the claim for the peripheral neuropathy because it didn’t manifest to a degree of 10% within one year after the last exposure to AO. However, diabetic neuropathy is a common symptom of DM. In the appeal, the attorney should change the claim to “peripheral neuropathy as secondary to DM type 2”. The medical evidence must show the nexus between the DM and the neuropathy.146 Likewise, a Vietnam veteran with ischemic heart disease suffers an ischemic stroke. The attorney should make a claim for service-connected disability benefits for the stroke as secondary to the ischemic heart disease.

The Vietnam Veteran

145

https://www.fasttrack.va.gov/AOFastTrack/. 146

BVA Citation Nr: 1315289, 05/09/13.

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The Veteran of the Vietnam era presents some challenges to the attorney who represents him. These challenges are different than those presented by Veterans of the Gulf War, Iraq (Operation Iraqi Freedom) or Afghanistan (Operation Enduring Freedom).

There are generally two classes of Vietnam Veterans; those who served “in-country”, often referred to as “boots on the ground”; and those who served during the Vietnam era but served in other areas such as Korea, Germany or the United States.

Unlike World War II, Korea, Iraq and Afghanistan, many if not most of the Vietnam Veterans who served in-country went over as individuals rather than as part of a unit. When they returned, they often came back as individuals, in uniform, on a commercial jet, to a hostile anti-war public. The large majority of these Veterans didn’t talk much about their Vietnam service and went on to lead productive careers in business, K-12 education, academia and state and federal government. However, many of these Veterans suffer from illnesses or injuries that are just now being recognized by the VA. Many diseases resulting from exposure to Agent Orange have only been recognized as compensable service-connected diseases within the last two decades. This is many years after these Veterans left Vietnam and left the military service. Likewise, with the recognition of PTSD as a service-connected problem, the VA has only within the last four years recognized that some Vietnam combat Veterans also have PTSD.

Many of these Vietnam Veterans who arrive in your office are angry. They are angry because they don’t know why their lives have been dysfunctional since they returned from Vietnam. They don’t know why they constantly suffer from various illnesses, why they haven’t been able to stay married, why they can’t hold steady jobs and why they have become alcoholics and/or drug abusers. They are angry because they feel that their country, represented by the VA, has not provided them with the benefits and medical care they perceive to be rightfully owed to them.

For these Veterans, the best service that the lawyer can provide is an ear, someone who listens to their complaints without being judgmental. The next best service is to detail in layman’s terms the necessary steps that have to be taken in order for the Veteran to receive those earned benefits.

Many of these Veterans have been receiving medical treatment from VA hospitals since their discharge from the military. They question why they haven’t been receiving any compensation for their injuries. The lawyer must explain that the VA hospital system is separate from the VA benefit system and that the two bureaucracies don’t share information unless the Veteran tells them to through the filing of a proper claim for benefits.

Another problem that the attorney confronts is the belief on the part of some Vietnam Era Veterans is that they should be compensated by the VA for every illness or injury that they have. It is often difficult to explain the concept of “service-connected” to these Veterans. Along with this belief is the assumption that the combat Veteran who

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had boots on the ground in Vietnam and is presumed to have been exposed to Agent Orange is entitled to compensation on the basis of that exposure. The attorney must explain that the Veteran has to have a currently diagnosed disability or disease which is on the list of those diseases recognized by the VA as “presumptively” caused by the exposure to Agent Orange.147

Finally, military medical records during this period are sparse, if not non-existent. An injured soldier or Marine in Vietnam may have gone to the battalion aid station, was treated and released back to the unit with little or no record of the treatment. The military STRs are an important element in proving that a specific injury or ailment is service-related. This is where statements from the veteran about where he served, what his job was, incidents that happened to him, etc. are important in developing the claim. This is especially true in the case of a claim for service connected PTSD as we will discuss later. Other help can be statements from friends concerning what they saw when they were with him. Letters to and from home are often helpful, especially if junior tells mom in the letter that he was in a firefight, got shot and saw the medic but the command put him back in to action a few days later. Physical injuries are generally easy to prove. The loss of a leg, a broken back from ejecting from an F-4 are readily seen or seen on x-rays. The psychic scars of seeing half your platoon killed in an ambush aren’t visible and stay with you for years. The impact is felt by your friends, your family, your spouse, your co-workers, your boss or law enforcement.

Claims for PTSD and TBI

According to the Nebraska Department of Veterans’ Affairs, about 30% of the men and women who have spent time in war zones experience PTSD. More than half of male Vietnam veterans and almost half of all female Vietnam veterans have experienced “clinically serious stress reaction symptoms”. Estimates of PTSD from the Gulf War are as high as 10%. Estimates from Iraq range from 12% to 20% and 6% to 11% in Afghanistan.148

Prior to July 13, 2010, VA regulations required claimants other than combat veterans to corroborate whether the veteran actually experienced the claimed in-service stressor. The changed regulations liberalized and improved the claims adjudication process by eliminating the time-consuming requirement when the claimed stressor is related to “fear of hostile military or terrorist activity”, is consistent with the places, types, and circumstances of the veteran’s service, and the veteran is diagnosed by a VA psychiatrist or VA psychologist or civilian psychiatrist confirms that the claimed stressor is adequate to support a diagnosis of PTSD. The regulation also covered all veterans, regardless of when they served. This encompassed the cohort of Vietnam veterans.149

Since PTSD was not recognized as compensable during the Vietnam War, records of treatment that specifically mention PTSD do not exist. The attorney may

147

38 CFR §3.309(e) 148

http://www.ptsd.ne.gov/what-is-ptsd.html 149

VA Fact Sheet, New Regulations on PTSD Claims, July 12, 2010.

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have to pore over barely readable, handwritten notes to find a reference to an event that could be the basis of a claim for combat-related PTSD. When representing Vietnam veterans, remember that there must be a “current diagnosis” of PTSD. Many Vietnam veterans have been reading articles in various veteran publications that tell the Vietnam veteran that he or she now qualifies to get benefits for PTSD. The veteran believes that he exhibits many if not all of the symptoms described in the DSM IV (now the DSM IV) and should be able to apply for benefits. When told that he needs a “current diagnosis” he gets angry and accuses the VA of being the problem. The veteran can’t just walk into his psychiatrist’s office and say “I have PTSD so write me a diagnosis”. The attorney representative needs to be aware of the elements to look for. Other than the technical language in 38 C.F.R. Part IV, the attorney representative can approach the problem on a more personal level. Ask the questions:

How many marriages have you had since you returned from Vietnam?;

Do you have children and if so, what is your relationship with them?;

How many jobs have you held since you left Vietnam?;

How many of your friends that you had prior to going to Vietnam do you still have?

How many DUIs have you had since you left Vietnam?

How well do you get along with your fellow employees, supervisors?

How’s your anger management?

Do you have trouble managing your impulse control?

Do you have short term memory issues?

Do you have trouble sleeping?

Do you suffer from depression?

Do you have headaches?

Can you concentrate on a task for more than a few minutes at a time?

Can you establish and maintain good social relationships with people?

The answers to these questions will tell you whether the veteran is a candidate for a claim for PTSD. These are the same complaints that the veteran should raise as symptoms when he does go to a VA psychiatrist/psychologist or a civilian psychiatrist.

It is important to remember that PTSD in combat veterans is a result of changes in the brain due to constant surges of norepinephrine (adrenaline).150

Traumatic Brain Injury

Traumatic Brain Injury (TBI) can cause a variety of short-term to long-term physical and neurological symptoms including those mentioned above, such as Parkinson’s disease.

150

See the VA’s National Center for PTSD at www.ptsd.va.gov. The medical evidence on brain neurology and norepinephrine is too voluminous for this presentation and is beyond the author’s ability to explain.

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TBI is a sudden jolt to the head that changes the way the brain works. Although blast injuries e.g. IEDs, EFPs, artillery and mortar rounds, are the most common causes of TBI in military personnel, other causes, which may or not be service-connected, such as fights, falls, motor vehicle accidents and impact sports can cause a TBI. For example, a Veteran who worked in the shop repairing military vehicles was struck in the head when a dual-ring tire repair exploded and knocked him unconscious. Today, he suffers from seizures and Parkinson’s disease.151 If the veteran was in a military motor vehicle accident and received a concussion, it is likely that some of the symptoms he has claimed for service-connected benefits are related to that TBI.

On December 17, 2013, the VA promulgated its final rule on Secondary Service Connection for Diagnosable Illnesses Associated with Traumatic Brain Injury.152 The five diagnosable illnesses determined to be caused by TBI are: (1) Parkinsonism, including Parkinson’s disease, manifested following moderate or severe TBI; (2) Unprovoked seizures manifested following moderate or severe TBI: (3) Dementias (presenile dementia of the Alzheimer type and post-traumatic dementia) if manifest within 15 years following moderate or severe TBI; (4) Depression if manifest within 3 years of moderate or severe TBI, or within 12 months of mild TBI; and (5) Diseases of hormone deficiency that result from hypothalamo-pituitary changes if manifest within 12 months of moderate or severe TBI.

Symptoms of TBI

Some of the symptoms of TBI are listed below.153 Note that some of the symptoms of TBI are similar to or the same as symptoms for PTSD. It is often the case that sufferers of TBI also suffer from PTSD. However, one can have PTSD without ever having experienced a TBI.

Headaches

Confusion

Dizziness

Blurred vision

Mood changes

Loss of memory

Nausea

Slurred speech

Irritable

Seizures

The young Iraqi or Afghanistan veteran who comes to the attorney and says that he was heard an IED go off, but was a block away, may have experienced a TBI. The

151

Veterans Health Library, http://www.veteranshealthlibrary.org/livingwith/traumaticbraininjury/Understanding/142,41381_VA 152

www.regulations.gov.Rule AN89, ID: VA-2012-VBA-0029-021, printed in the Federal Register 77 FR 73366 153

Ibid.

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shockwave of a small IED explosion travels at 1600 feet per second. Even if the veteran’s skull is not penetrated by shrapnel, the shockwave can cause the brain to compress inside the skull, resulting in concussion or other brain injury.154

Other Than Honorable Discharges

The sections above on PTSD and TBI lead into the subject of how the attorney representative handles the veteran with an Other than Honorable discharge (“OTH”).

Honorable discharges and General discharges under Honorable conditions do not present statutory or administrative barriers to the receipt of benefits from the VA. Likewise, Bad Conduct Discharges and Dishonorable discharges are on the other end of the spectrum and do present total bars to the receipt of benefits.155

The OTH discharge is in the middle ground where the attorney has the opportunity to proceed in one of two directions or both simultaneously.

There has been a surprising increase in Other than Honorable discharges from the military services since 9/11. The recent increase is partly due to the impending drawdown of troops in the Army and the Marine Corps. However, much of the increase is a result of sending soldiers and Marines to combat where some may experience a TBI or develop PTSD. Some of these servicemembers get into trouble with civilian law enforcement, or have discipline issues within the military after they return because they cannot adapt to the peacetime military environment.156 It’s easier for the military to discharge these servicemembers than it is to deal with the discipline issues and medical problems. The OTH discharge creates a bar to VA benefits. Unfortunately for many of these veterans, the help that they need is only available at the VA because the veteran no longer has access to military medical care and can’t afford civilian medical care. The VA Health system often rejects these veterans for healthcare and it is up to the attorney to help them.

The attorney has several options. The first is to determine whether the VA has denied the veteran medical care for service-connected injuries, including PTSD. The VA is obligated to provide care under 38 U.S.C. Chapter 17 “to certain former service persons with administrative discharges under other than honorable conditions for any disability incurred or aggravated during active military, naval, or air service in line of duty.”157 File a Notice of Disagreement immediately upon a denial of health benefits.

The next step is to look for evidence of PTSD and/or TBI in the veteran’s service medical records or VA records. If this evidence exists, look for the dates when the

154

http://defense-update.com/analysis/analysis_270507_blast.htm; see also the Journal of Rehabilitation Research & Development, http://www.rehab.research.va.gov/jour/09/46/6/pdf/kocsis.pdf. 155

38 CFR § 3.12(c). 156

Philipps, Dave (2013, May 19). Disposable Surge in discharges includes wounded soldiers. Colorado Springs Gazette. See also, Lethal Warriors, Philipps, Dave, Palgrave Macmillan, NY (2010). 157

38 CFR §3.360(a).

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misconduct occurred. More likely than not, it will appear in the records after a combat tour, often after the second or third combat tour. Look at the veteran’s citations and medals prior to the misconduct. Often, the veteran’s record will not indicate any discipline problems until returning stateside but will show a variety of medals and badges, including for example, the Combat Infantryman’s Badge, Purple Heart, Army Commendation medal (or similar medal for the Marine Corps). Look for evidence of domestic violence charges after the veteran has returned or any other contacts with law enforcement.

If it appears that the evidence would show PTSD or TBI, file the NOD on denial of benefits, if there has been a denial, or file an initial claim for benefits and submit the evidence of the PTSD/TBI. Remember, for the initial claim to be granted, there has to be a current diagnosis of PTSD.

The second approach, which can be done simultaneously with the filing of the claim or NOD, is to file an application for discharge review158 with the particular military service’s discharge review board. This work does not require the attorney to be accredited by the VA and therefore doesn’t have the fee restrictions that VA work has. However, most of the veterans who have this character of discharge problem also don’t have any money. Additionally, in order to get access to the veteran’s VA medical records, the attorney must be accredited.

When applying for a discharge review, request a records review first from the discharge review board. This allows a second look at the case in the event that the application is denied. The attorney can still ask for a review by the full board. The process is somewhat lengthy. From the date of receipt of a docket number, expect to wait 15-18 months before the review is completed.

A recent decision from the Naval Discharge Review Board (NDRB) is somewhat instructive of the evidence that the attorney must find. This application was for a young Marine who suffers from severe PTSD and was discharged by the Marine Corps with an OTH for persistent misconduct. Most of the misconduct was minor in nature and most of it occurred after his return from Iraq. Voluminous medical records were submitted to the NDRB showing that the veteran was experiencing severe cognitive issues while in the military and prior to the OTH discharge. The NDRB denied the application for discharge upgrade and said that there was no specific diagnosis of PTSD by a psychiatrist. All of the military medical examiners were psychologists or LCSWs. This decision seems to be consistent with the VA’s standard operating procedure that PTSD must be diagnosed by one of its psychiatrists or psychologists or a civilian psychiatrist. The NDRB however left the door open for a further review upon submission of specific diagnoses.

Unfortunately, the process of getting a VA review at the Board of Veterans Appeals is extremely lengthy. It probably makes the most sense to attack the problem

158

DD Form 293, Application for the Review of Discharge from the Armed Forces of the United States.

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at both the VA and the discharge review board simultaneously, if the attorney is inclined to do a lot of pro bono work.

Injuries or death caused by the VA

When a veteran is injured by actions of the VA, the attorney can pursue one of two avenues for relief. A section 1151 claim159 is a claim to the VA for benefits for the injury or death of the veteran as a result of VA health care, VA vocational rehabilitation, or participation in a VA compensated work therapy program (CWT). Compensation is paid “as if” the disability was service-connected. If the veteran dies as a result of VA fault or accident, DIC will be paid to survivors “as if” the death were service-connected. This claim is strictly for injuries or death caused by VA care, not for exacerbations of service-connected injuries or illnesses as a result of VA care. In those cases, the veteran needs only to file for an increase in the disability rating previously received for the service-connected injury. Claims may be made using VONAPP or by filing within eBenefits. The attorney taking on a § 1151 claim needs to remember that he is not going to be able to charge attorney fees for the initial claim for benefits. If the claim is denied, the attorney can pursue an appeal through the normal appellate process.

In order to initiate an § 1151 claim, the claimant must show “intent” to apply for § 1151 benefits.160 The simple filing of the SF95, discussed below, does not constitute an informal claim for VA benefits. A § 1151 claim may be filed at any time after the injury. However, see below where the claim must be filed with the VA within two years if the attorney also wants to pursue a Federal Tort Claims action.

When there has been medical malpractice by the VA, the attorney can also pursue a malpractice claim under the Federal Tort Claims Act (“FTCA”)161.

In the case of an FTCA claim, prior to filing suit, “a claimant must first present his claim to the federal agency out of whose activities his claim arose.”162 The claim is filed on an SF95 and must be filed with the regional office that has jurisdiction over the area in which the alleged malpractice occurred. The claim must be filed within two years after such claim accrues. Generally, under FTCA, a claim arises at the time of the injury.163 Although an FTCA claim does not require a VA accredited attorney, the claim under § 1151 would. It is likely that the veteran will require two attorneys in this case.

A prevailing attorney may get an award of damages if he can show by a “preponderance of the evidence” that the VA health care was negligent. The FTCA award may include pain, suffering and economic loss. These awards are usually made in a lump sum. Obviously, this is a better option for the veteran because if death occurs

159

38 U.S.C.S. $ 1151 160

Mansfield v. Peake, 525 F.3d 1312 (Fed. Cir. 2008) cert. denied, Mansfield v. Peak, 2009 U.S. LEXIS 525 (2009). 161

28 U.S.C.S. §§ 1346(b), 2671-2680. 162

Awards of Attorneys’ Fees by Federal Courts and Federal Agencies, CRS Report for Congress, Order Code 94-970, Updated June 20, 2008 at p.7. 163

United States v. Kubrick, 444 U.S. 111 (1979).

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after the lump sum payment, the amount passes to heirs and other beneficiaries of the veteran’s estate. Although the standard of proof is higher than in a § 1151 claim, (and theoretically more difficult) the scope of liability is greater. The FTCA action would cover injuries incurred by a veteran where the negligence of a VA employee caused the injury or death. For example, a VA maintenance worker mops a VA hospital stairwell and leaves a wet area. A veteran slips on the wet area and injures his back. This is not a result of VA health care, VA vocational rehabilitation, or participation in a VA compensated work therapy program (CWT). A § 1151 claim would not be appropriate, but the veteran would probably prevail with a claim under FTCA.

A different result occurs where the veteran’s injuries or death are caused by VA health care. If the claimant files a § 1151 claim and then subsequently files an FTCA action and prevails on the FTCA action and then later prevails on the § 1151 claim, the entire amount of the § 1151 benefits will be reduced by the total amount of the FTCA award.164

The DRO Process

As discussed in chapter 1, the attorney who fails to request the DRO process at the first step of the appeals process misses a great opportunity to have his client’s case seen by another set of eyes within the VA. Additionally, except in rare circumstances, the attorney should request a hearing before the DRO. The new NOD form is an excellent way to tell the VA in advance that the DRO process is elected and that the veteran requests a hearing. Veterans are entitled to hearings in the appeals process.165 Like all processes in the VA, the appellate process takes time. A Notice of Disagreement filed with the Denver RO in January of 2013 was not decided until January 2014.

The NOD form is relatively new. The VA designed it to reduce the time to process the appeal. A veteran would submit a letter to the VA saying that he disagreed with the VA’s decision. Unfortunately, the veteran did not specify which denied claim in a specific decision letter he disagreed with. In many cases, the veteran had numerous claims and numerous decision letters over several years. The VA couldn’t tell which decision letter was being referenced. This resulted in the VA contacting the veteran numerous times for more information. If the veteran moved and didn’t notify the VA of his new address, the VA had no way of contacting him for that information. Often, the one year time for filing a formal appeal passed and the VA dropped the appeal. Later, the veteran contacts an accredited representative and told he has to re-start his claim. The attorney now has one very frustrated and angry veteran on his hands.

The hearing is part of the VA’s duty to assist. It is non-adversarial. Hearing officers are cautioned to avoid the appearance and atmosphere of a formal trial or any similar proceeding.166 This is often the only personal contact the veteran may have with 164

38 U.S.C.S. 1151(b)(1); 38 CFR § 3.362(b) (2013).

165 38 CFR §3.103(a).

166 M21-1MR, Part I, Chapter 4. 1 h.

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the VA. The veteran has been getting numerous informational letters, decision letters and denials and may be totally frustrated with the VA process. In a hearing, the VA employee has an opportunity to hear the veteran’s story from his own mouth. If the veteran’s file is at an RO in a different state, the attorney may request a video conference. The DRO is a VA employee who was not involved in the initial decision denying the veteran’s claim.

Another reason for requesting the hearing is that the attorney can help the DRO focus on the specific evidence that the attorney is using to support the veteran’s appeal. For example, an elderly veteran who was injured in a parachute accident in the 1950’s had been denied over and over again for service-connection for a severe back injury continuing to the present day. The veteran had a representative during his two previous appeals to the Board of Veterans Appeals, but apparently had not been prepped for his testimony. According to the veteran, the representative didn’t say a word during the hearings. The veteran filed an appeal through a Notice of Disagreement and then sought counsel to represent him. The veteran spoke well, had a firm grasp of dates and places of his injury and dates and places where he was treated in military hospitals. During the hearing, the DRO found the specific evidence in the file that proved the service-connection. Unfortunately, the evidence had been in the veteran’s file all along but had been overlooked (or ignored) in the previous appeals. The DRO requested another exam of the veteran’s back by the VA and the veteran was subsequently granted service-connection at the 60% disability level.

When filing a Notice of Disagreement on the new form, here are a few tips. First, mark the box in block 13 “No”. As the veteran’s attorney, you don’t want him speaking to the VA without your knowledge. Second, in block 16A, write “If the VA has questions concerning this NOD, please contact the Veteran’s representative, John Smith, (accreditation no. xxxxxx), (phone number), (FAX number) (mailing address), (email address). This allows the DRO to contact you directly if she has questions concerning the claim or the NOD. Next, in block 16A, type “The Veteran requests the DRO Process and a face to face hearing with the DRO”. Finally, write “If this appeal is not resolved favorably, please send a Statement of the Case so that the Veteran may file a formal appeal to the Board of Veterans Appeals”.167

The DRO hearing is informal. However, it only lasts one hour. It is taped. The attorney can let his client state his case, as the client is often the best person to describe events, dates and current symptoms. Or, the attorney can question the veteran in a direct examination fashion. In either case, the attorney needs to prepare the veteran in order to best use the time. Even if you have a severely disabled veteran who has difficulty communicating, the hearing is important. A recent DRO hearing in Denver involved a veteran with numerous Agent Orange related diseases. He had suffered a stroke and was in a wheelchair being attended to by his wife. Although the veteran was aphasic, he could communicate with a grunted “yes” or “no”. The veteran’s appearance at the hearing gave the DRO a personal view of the case, rather than just a one foot thick claims file with a name and number. The DRO subsequently requested

167

Stichman, et al., 1017-1018.

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additional information which was not in the file and the veteran was granted disability ratings for a number of the claims. Prior to and during the DRO hearing, the veteran can submit additional evidence to support his claim for benefits.

One area of claims which is getting greater focus from the VA is the issue of military sexual assault (called “Military Sexual Trauma” or MST). A number of these cases involve a sexual assault from many years ago. The VA denies the claim for PTSD resulting from sexual assault while in the service because there is no evidence in the record that the assault was ever reported. This is another reason for requesting a hearing. Think about the young black woman in the Army in the 60’s and 70’s. She’s raped by a senior NCO. Who does she report the assault to? She may tell a friend but more likely than not she doesn’t tell anyone in the command. She probably doesn’t even go to the base medical facility because of her age, race and the embarrassment of telling someone what happened. The VA continues to deny her claim because the record doesn’t show a report, a medical record, etc. The hearing is an opportunity for the veteran to tell her story.

Likewise, a female veteran with multiple physical injuries has been denied by the VA for her diagnosed diabetes because the veteran could not establish a nexus between the illness and her military service. The veteran says “I’ve never told anyone but my sister, but I was raped while in the service”. There is no claim for benefits based on MST. The attorney may file a new claim and attempt to show the VA that there is a strong link between PTSD and DM Type II.

One recommendation from a Denver DRO is that the attorney should not file new claims prior to a decision being made on a current NOD. One veteran was adding new claims every few months while the VA was attempting to schedule the DRO hearing. Each new claim had to be evaluated prior to scheduling the hearing.

The Board of Veterans Appeals

If the attorney is not able to obtain a favorable decision from the DRO, the attorney should ensure that the DRO issues a Statement of the Case or Supplemental Statement of the Case. The one year date for filing the formal appeal starts with the date of the decision letter, or the date of the SOC or SSOC, whichever is later.

The VA 9 should be completed in a similar fashion to the NOD. State the date of the decision letter, SOC or SSOC that is being appealed. State any errors that the attorney believes the VA made or the DRO made. If there is a Clear and Unmistakable Error (CUE)168, state it. For example, if the decision clearly misinterprets existing statutes or regulations, that is a CUE. Be aware that the paper files system of the VA is cumbersome and often one veteran’s records are misfiled with those of another veteran. If the VA decision officer denies a claim on the basis of information from a document in the file that belongs to a different veteran, establish that as a CUE. The author has seen cases where a veteran claiming injuries from AO was denied benefits based on a

168

38 CFR § 20.1403.

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finding that the veteran never served in Vietnam. A review of the veteran’s dd214 shows conclusively that the veteran served on the ground in Vietnam and was awarded the Vietnam Campaign Medal, the Vietnam Civic Action ribbon, etc. This was a decision based on a clear misreading of the evidence which “when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error.”169

The regional office of jurisdiction will prepare the appeals file for shipment to the BVA in Washington, D.C. Once the packet is certified, the veteran will receive a “90 Day Letter” that tells the veteran that the file is being sent to Washington. If the veteran has not already requested a hearing, he has 90 days to do so. All subsequent information from the veteran or his representative is to be directed to the BVA.

Before an appeal is forwarded to BVA, RO must adjudicate all existing claims. This may delay the process of the formal appeal for another six months to a year. If the new claim is denied, the veteran may elect the DRO process again, prior to electing the formal appeal. If the DRO denies the claim, the attorney may request that the denied claim be added to the formal appeal for the other claims.

Once the file has been sent to Washington, the veteran will get a notice that the case has been docketed. It may take up to two years from the date of filing the formal appeal for the veteran to get this notice (See table below). A scheduled hearing may not occur for another year or more. The following decisions are examples of the lengthy process of BVA appeals.

Docket No. RO Decision Letter Hearing Date BVA Decision

1339255 8/2009 4/2013 11/29/13

1339242 5/2006 6/2013 11/29/2013

1339095 4/2009 3/2013 11/27/2013

The United States Court of Appeals for the Ninth Circuit noted in 2012 that it takes on average over 800 days to get an appeal to the BVA. It takes, on average 455 to hold a BVA hearing if one is requested and another 336 days for the Board to issue its decision.170

169

Ibid. 170

Veterans for Common Sense, et al. v. Eric K. Shinseki, et al. 645 F.3d 845, 859 (9th Cir. 2011), aff’d in

part, rev’d in part, remanded with instructions to dismiss, 678 F.3d 1013 (9th Cir. 2012), dismissed, 2012

U.S. Dist. LEXIS 102049 (N.D. Cal. Jul. 20, 2012), cert. denied, 133 S. Ct.840, 2013 U.S. LEXIS 406 (U.S. 2013).

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Time Interval Responsible Party Average Elapsed Processing Time

Notice of Disagreement Receipt to SOC

Regional Office 270 days

SOC to receipt of VA-9 Claimant 40 days

VA-9 receipt to certification of appeal to VBA

Regional Office 692 days

Receipt of certified appeal to issuance of BVA decision

BVA 251 days

Additional time if remanded Regional Office 445 days

Source: Annual Report of the Chairman, Board of Veterans’ Appeals, Fiscal Year 2012, at 19

When reviewing BVA decisions,171 the attorney will see that they involve numerous ratings decisions from the RO, prior appeals and remands to the RO for further development. A BVA decision partially in favor of the veteran that was heard by video conference in November 2012 was remanded to the VA for further development on certain issues. A request to the RO and to the BVA in January 2014 about the status of the remand was met with a response that the RO was still processing the claim.

Although the BVA is not bound by previous decisions of the Board, it does look to decisions from the Court of Appeals for Veterans’ Claims and the U.S. District Court of Appeals in determining whether its own decision(s) comport with precedent.172 It is useful to review the Board’s cases citing specific injuries and diseases in order to get an idea of the type and form of evidence that the Board looks at in deciding cases favorably.

A BVA decision is final. The next level of appeal is to the Court of Appeals for Veterans’ Claims (CAVC).

Court of Appeals for Veterans Claims (CAVC)

The Court of Appeals for Veterans Claims has exclusive jurisdiction to provide judicial review of final decisions of the Board of Veterans’ Appeals.173

The attorney wishing to practice before the Court must file an application for admission174 and follow the Rules of Admission and Practice.175

171

http://www.index.va.gov/search/va/bva.html 172

Thurber v. Brown, 5 Vet.App 119 (1993), cited by BVA9409094, Docket No. 91-51 836 (undated). 173

http://www.uscourts.cavc.gov/. 174

Form 46a available at http://www.uscourts.cavc.gov/documents/Form46A_02-12_.pdf.

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Once the BVA hands down a final decision, the attorney my file a Notice of Appeal176 with the $50.00 filing fee.177 The Notice of Appeal must be received by the Clerk of the Court not later than 120 days after the date on which the Board mailed the notice of decision to the last known address of the appellant and the appellant’s authorized representative, if any.178 The Clerk will docket the appeal and send a notice of docketing to all parties. The Notice of Docketing instructs the Secretary to serve on the appellant the Record Before the Agency (RBA). The RBA includes all materials that were contained in the claims file on the date the Board issued the decision being appealed.179

Within 30 days, the Secretary of the VA (Appellee) will file with the Clerk and serve on the appellant a copy of the Board’s decision and the RBA. Once both parties agree on the RBA, the Clerk issues a notice instructing the appellant to file a brief within 60 days. The brief may not exceed 30 pages and may not include new evidence. The Secretary must then file a brief within 60 days of receipt of the appellant’s brief. The appellant has the option of filing a reply brief not to exceed 15 pages.180

Within 14 days after the reply brief is filed or within 14 days of when the reply brief was due, if one was not filed, the Secretary must file the Record of Proceedings (ROP) which contains all of the relevant documents from the RBA that are required to decide the appeal. The appellant may file a Motion to Dispute the ROP.

The decision may be made by the single judge assigned to case, a panel of three judges or en banc (9 judges). The judgment is issued 21 days after it issues its decision. The median time from the filing of an appeal to a decision by a single judge is 470 days. The median time when decided by a panel of judges is 812 days.181

Remand by the BVA

Unfortunately, a veteran or his representative cannot appeal a remand of a claim by the BVA to the RO. The BVA remand must be ruled upon by the RO, returned to the BVA, if necessary, and then ruled on again by the BVA for a final decision.182 As one can see from the above table of process times, a remand can be very frustrating to the veteran and his representative if it is not resolved in the veteran’s favor at the RO.

175

Available at http://www.uscourts.cavc.gov/documents/RulesofAdmissionandPractice-April_20_2012.pdf 176

Form 1, available at http://www.uscourts.cavc.gov/documents/Rules_of_Practice_and_Procedure_effective_Sept_15_2011_-_Form_1.pdf 177

Ibid Rule 3. 178

Ibid Rule 4. See Rules 28, 31 and 32 of Rules of Practice and Procedure. 179

http://www.uscourts.cavc.gov/court_process.php 180

Ibid. 181

See Annual Report of the United States Court of Appeals for Veterans Claims October 1, 2011 to September 2012 (Fiscal Year 2012). 182

Brambley v. Principi, 17 Vet. App. 20, 22 (2003).

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Electronic Filing

Since October 14, 2008, the CAVC has adopted the Case Management/Electronic Case Filing System (CM/ECF) which requires electronic filing for all represented parties, unless the Court grants an exemption.183 Unfortunately, the attorney who wishes to practice before the Court needs to complete online training modules before receiving authorization and access logins and passwords. The author received his admission to practice before the Court on April 30, 2013 but didn’t receive his login and password until September 24, 2013. Although there may have been a delay in completing the modules, it still takes some time to complete all the requirements to practice before the Court.

Oral Arguments

Although most decisions are issued as a result of a paper review (briefs and Record Before the Board and Record of Proceedings), the parties may request oral argument not later than 14 days after the reply brief is due. Generally, oral arguments are held in Washington, D.C. but the Court does hold oral arguments at various law schools around the country. Oral arguments will only be allowed when ordered by the Court.184 The Court provides a Guide for Counsel on the conduct of oral argument.185

Equal Access to Justice Act (EAJA)186

This presentation has discussed the issue of the lack of financial resources of most of the veteran clients, and spouses who have claims before the VA. The attorney representative has to make a decision whether s/he will take on a case involving a tremendous amount of research and a lengthy process without any guarantee of compensation. As discussed above, the attorney who prevails on a veteran’s appeal to the RO or the BVA is entitled to a fee. Although the fee agreement can be structured that the claimant pays the attorney directly, it is probably most advantageous for the attorney to be paid directly by the VA rather than relying on the veteran to pay the attorney.

In the case of appeals to the CAVC, the attorney can apply pursuant to 28 U.S.C. § 2412(d), the Equal Access to Justice Act (EAJA) for attorney fees and/or other expenses.187 The application must be submitted for filing with the Clerk not later than 30 days after the Court’s judgment becomes final.188

The Secretary may file a response within 30 days of the date of filing the application if he disputes the amount of fees and expenses. 189 The Court requires the

183

http://www.uscourts.cavc.gov/e-filing.php . 184

Supra note 176 , Rule 34. 185

Available at http://www.uscourts.cavc.gov/documents/OAGuide2013.pdf 186

5 U.S.C. § 504. 187

Form AO 291 available at http://cdn.ca9.uscourts.gov/datastore/uploads/forms/EAJA-Fees.pdf. 188

Rule 39, Rules of Practice and Procedure. 189

Ibid.

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parties to consult in good faith to resolve the dispute over the amount of fees in order to resolve the issue in an expeditious manner.

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Appendix A Recent Board of Veterans Appeals Decisions190 #1134088, 9/12/11 - Appellant was represented by unaccredited attorney. The appellant was the guardian/mother of an illegitimate minor child a deceased veteran. The BVA (Board) remanded the appellant’s claim to clarify the appellant’s representative. The Board noted that the appellant had been unrepresented during the majority of the appeal but in October 2010, the VA received notice from a private attorney, which indicated that the attorney had been retained to represent the illegitimate minor child of the veteran. In the remand decision, The Board referred to the new regulations provided in 38 CFR §14.629(b) regarding attorney accreditation after June 23, 2008. The Board directed the attorney to get accredited, submit a 21-22a and a proper fee agreement. Held: If the attorney submitted the correct documentation, the attorney would be allowed to review the appellant’s claim file and submit arguments on the appellant’s behalf. #1140233, 10/28/11 – Appellant was represented by the Oregon Department of Veterans’ Affairs. Appellant was a member of the Air National Guard who had initial active duty for training from September 5, 1996, to December 20, 1996. The appellant had additional periods of inactive duty for training, but was never activated for any active duty service. Held: Service connection may be granted for disability resulting from disease or injury incurred or aggravated by active service. A member of the National Guard only serves in the federal military when the member is formally called into the military service of the United States. At all other times, a member of the National Guard serves solely as a member of the State militia under the command of a state governor. To have basic eligibility for VA benefits, a claimant as a member of a state Air National Guard must have been ordered into Federal service. The appellant failed to show service connection for a psychiatric disability based on the appellant’s active duty for training. The appellant had no legal entitlement to compensation or pension benefits. #1140396, 10/31/11 - Appellant represented by private, accredited attorney – The issue in this case was whether the spouse of a deceased veteran was entitled to death benefits as a surviving spouse. The claimant/appellant was seeking status as a surviving spouse. The RO denied service connection for the veteran’s death. During the appeals process, the RO determined that the appellant was not a surviving spouse for purposes of VA death benefits because the veteran and the claimant did not live together continuously from the date of the marriage until the date of the veteran’s death. The evidence showed that the veteran and the appellant separated in the mid-60’s and continued to live separately until the veteran’s death. The appellant was found to have perjured herself on the application for benefits by stating that she and the veteran had been continuously cohabitating during the entire marriage. The Board held that the fact that the veteran and appellant were never divorced was insufficient to establish the appellant as the veteran’s surviving spouse. The Board held “…it must be shown that

190

http://www.index.va.gov/search/va/bva_search.jsp?QT=&SQ=vetapp11&RPP=10&UA=Search

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the separation between the appellant and the veteran was due to misconduct of or procured by the veteran without fault of the appellant, or by mutual consent for purposes of convenience, health, business, or any other reason which did not show an intent on the part of the appellant to desert the veteran. 38 CFR §§ 3.50, 3.53; Alpough v. Nicholson, 490 F.3d 1352 (Fed. Cir. 2007). Held: Entitlement to recognition as a surviving spouse for death benefits was denied. #1140392, 10/31/11 – Appellant was represented by the Texas Veterans Commission. The issue in this case was whether the veteran’s back disorder was at least as likely as not aggravated by the veteran’s service-connected gunshot wound to the left calf. The VA examiner had concluded that the low back issues and problems were not caused by or a result of the left calf gunshot wound in 1957. The examiner only provided an opinion on whether the veteran’s claimed low back disorder was “caused by” the service- connected disorder and did not address the issue of aggravation in terms of “result of”. The Board held that “A finding that a disability was not caused by another condition does not encompass a finding that it was also not aggravated by that condition.” The Board cited Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 CFR 3.310 (2011). Held: Remanded to the RO and ordered the RO to schedule the veteran for an examination to determine whether the veteran’s back disorder was aggravated by his service-connected gunshot wound. #1140390, 10/31/11 – Appellant represented by Florida Department of Veterans Affairs The issue in this case was whether new and material evidence has been presented to reopen a claim of entitlement to service connection for bilateral hearing loss. In 2007, the RO denied veteran’s claim for service-connection for bilateral hearing loss. The veteran did not appeal that decision. The veteran submitted additional evidence, which was not cumulative of other evidence of record and presented evidence and testimony in a January 2011 hearing. A transcript of the hearing was part of the file before the BVA. “New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 CFR 3.156(a).” This is a case where the testimony of the veteran was held to be not credible. The veteran admitted to drinking and drug abuse. The veteran claimed to have been seen at a VA Medical Center but there were no records of his being seen at the Center. The veteran claimed that he was seen by the VA ten years prior to the Medical Center having any record. He claimed that he had been fitted for hearing aids in 1990 but the earliest reports of a hearing aid was in 2008 and then only for one ear. The Board said “In summary, the veteran’s testimony is shown to be so inconsistent, uncorroborated, and contradicted by the post-service medical records, that the Board finds that he is not a credible historian.” See Caluza v. Brown, 7 Vet. App. 498 (1995) which held that in weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and

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demeanor of the witness. Held: Claim reopened due to new and material evidence submitted, but service connection for bilateral hearing loss denied because only one ear had a hearing loss that was deemed to be service connected. #1140384, 10/31/11 – Appellant represented by Vietnam Veterans of America – The issue in this case was whether the appellant was entitled to a higher rating than 30% for PTSD. The RO denied the veteran’s claim and the veteran appealed to the BVA. The veteran, his wife and daughter testified before a Veterans Law Judge of the Board in a videoconference. The Board issued a higher rating of 50%. The veteran appealed the BVA’s decision to the U.S. Court of Appeals for Veterans Claims. That Court vacated the board’s decision to the extent that the Board had denied a rating higher than 50%. The Board remanded the claim to the RO. “The reasons for the remand were to “obtain the records of any additional evaluation or treatment the veteran may have received for his PTSD and to have him undergo another VA compensation examination to reassess the severity of this disability. Regarding the latter, the Board indicated the designated examiner needed to consider and comment on the testimony of the veteran, his wife and daughter had provided during the April 2010 videoconference hearing, as well as other evidence in the claims file that was at odds with the findings and results of a February 2008 VA compensation examination.” The 2011 VA examination report reflected that the veteran indicated he received ongoing treatment for his PTSD at the VA outpatient clinic, and at the Vet Center. The Board also noted that there was evidence in the file that the veteran indicated he was receiving disability benefits from the Social Security Administration, apparently due in part to his PTSD. The SSA records were not in the file and the Board said on remand that they needed to be obtained. Held: Remanded to the RO for further development. The veteran has the right to submit additional evidence and argument concerning the claim the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). Also, pursuant to 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011), a claim that is remanded by the Board or by the U.S. Court of Appeals for Veteran’s Claims for additional development or other appropriate action must be afforded expeditious treatment.

#1140374, 10/31/11 – Appellant represented by private accredited attorney – The

issue in this case was whether the veteran’s service in Vietnam and a diagnosis of PTSD by the VA psychiatrist was related, at least in part, to the veteran’s fear of hostile military activity and sufficient to create a presumption of service-connection. Although the veteran’s STRs contained no record of complaints or a diagnosis or treatment for a psychiatric disorder during service, they did show his presence in Saigon in 1966. The veteran’s VA treatment records dating from 1998 showed treatment for PTSD. In July 1999, the veteran received inpatient care in a VA residential PTSD program. Service connection for posttraumatic stress disorder requires medical evidence diagnosing the condition in accordance with 38 CFR §4.125(a) (a diagnosis that conforms to DSM-IV); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 CFR §3.304(f). For a stressor to be sufficient for posttraumatic stress disorder, the stressor must meet two requirements: (1) A person must have been “exposed to a traumatic event” in which “the person experienced, witnessed, or was confronted with

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an event or events that involved actual or a threatened death or serious injury, or a threat to the physical integrity of self or others,” and (2) “the person’s response (must have) involved intense fear, helplessness, or horror.” In this case, the evidence confirmed that the veteran served in an Artillery Regiment in Vietnam during the Vietnam war as a Military Policeman; and, absent any evidence to the contrary, the Board found the veteran's report that he performed covert security watches in Vietnam; witnessed, first hand, the torture of enemy combatants; loaded the bodies of fallen comrades onto evacuation aircraft; and was in fear for his own life while in Vietnam, to be not only entirely consistent with the circumstances of his service, but credible. 38 CFR §3.304(f). See also Suozzi v. Brown, 10 Vet. App. 307 (1997) (holding that "corroboration of every detail [of a claimed stressor] including the appellant's personal participation" is not required; rather an appellant only needs to offer independent evidence of a stressful event that is sufficient to imply his or her personal exposure). Held: Service connection for PTSD was granted.

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EXHIBIT A

1. Veterans Compensation Benefits Rate Tables - Effective

12/1/13

10% - 20% (No Dependents)

Percentage Rate

10% $130.94

20% $258.83

30% - 60% Without Children

Dependent Status 30% 40% 50% 60%

Veteran Alone $400.93 $577.54 $822.15 $1,041.39

Veteran with Spouse Only $448.74 $641.28 $901.83 $1,137.01

Veteran with Spouse & One Parent $487.11 $692.44 $965.78 $1,213.74

Veteran with Spouse and Two Parents $525.48 $743.60 $1,029.73 $1,290.47

Veteran with One Parent $439.30 $628.70 $886.10 $1,118.12

Veteran with Two Parents $477.67 $679.86 $950.05 $1,194.85

Additional for A/A spouse (see footnote b) $43.85 $58.47 $73.08 $87.69

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70% - 100% Without Children

Dependent Status 70% 80% 90% 100%

Veteran Alone $1,312.40 $1,525.55 $1,714.34 $2,858.24

Veteran with Spouse Only $1,423.95 $1,653.04 $1,857.76 $3,017.60

Veteran with Spouse and One Parent $1,513.47 $1,755.35 $1,972.86 $3,145.49

Veteran with Spouse and Two Parents $1,602.99 $1,857.66 $2,087.96 $3,273.38

Veteran with One Parent $1,401.92 $1,627.86 $1,829.44 $2,986.13

Veteran with Two Parents $1,491.44 $1,730.17 $1,944.54 $3,114.02

Additional for A/A spouse (see footnote b) $102.31 $116.93 $131.55 $146.16

30% - 60% With Children

Dependent Status 30% 40% 50% 60%

Veteran with Spouse and Child $483.75 $687.97 $960.19 $1,207.04

Veteran with Child Only $432.90 $620.17 $875.54 $1,105.34

Veteran with Spouse, One Parent and Child $522.12 $739.13 $1,024.14 $1,283.77

Veteran with Spouse, Two Parents and Child $560.94 $790.29 $1,088.09 $1,360.50

Veteran with One Parent and Child $471.27 $671.33 $939.39 $1,182.07

Veteran with Two Parents and Child $509.64 $722.49 $1003.34 $1,258.80

Add for Each Additional Child Under Age 18 $23.75 $31.67 $39.59 $47.50

Each Additional Schoolchild Over Age 18 (see footnote a) $76.73 $102.31 $127.89 $153.47

Additional for A/A spouse (see footnote b) $43.85 $58.47 $73.08 $87.69

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70% - 100% With Children

Dependent Status 70% 80% 90% 100%

Veteran with Spouse and Child $1,505.66 $1,746.41 $1,962.81 $3,134.32

Veteran with Child Only $1,387.01 $1,610.81 $1,810.26 $2,964.82

Veteran with Spouse, One Parent and Child $1,595.18 $1,848.72 $2,077.91 $3,262.21

Veteran with Spouse, Two Parents and Child $1,684.70 $1,951.03 $2,193.01 $3,390.10

Veteran with One Parent and Child $1,476.53 $1,713.12 $1,925.36 $3,092.71

Veteran with Two Parents and Child $1,566.05 $1,815.43 $2,040.46 $3,220.60

Add for Each Additional Child Under Age 18 $55.42 $63.34 $71.25 $79.17

Each Additional Schoolchild Over Age 18 (see footnote a) $179.05 $204.62 $230.20 $255.78

Additional for A/A spouse (see footnote b) $102.31 $116.93 $131.55 $146.16

a. FOOTNOTES:

a. Rates for each school child are shown separately. They are not included with any other

compensation rates. All other entries on this chart reflecting a rate for children show the rate payable

for children under 18 or helpless. To find the amount payable to a 70% disabled Veteran with a

spouse and four children, one of whom is over 18 and attending school, take the 70% rate for a

veteran with a spouse and 3 children, $1,616.50, and add the rate for one school child, $179.05. The

total amount payable is $1,795.55.

b. Where the veteran has a spouse who is determined to require A/A, add the figure shown as

"additional for A/A spouse" to the amount shown for the proper dependency code. For example,

veteran has A/A spouse and 2 minor children and is 70% disabled. Add $102.31, additional for A/A

spouse, to the rate for a 70% veteran with dependency code 12, $1,561.08. The total amount

payable is $1,663.39.

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Exhibit B

Dependency Indemnity Compensation (DIC) Rate Tables -

Effective 12/1/12

Veteran's Death Was

On or After January 1, 1993 Before January 1, 1993

Basic Monthly Rate

Additional Allowances

Surviving Spouse, Enlisted Pay Grade

Surviving Spouse, Warrant Officer Pay Grade

Surviving Spouse, Officer Pay Grade

Children, Surviving Spouse Entitled

Children, No Surviving Spouse

Historic Rates

Veteran's Death Was On or After January 1, 1993

Effective 12/1/12

Basic Monthly Rate = $1215 (38 U.S.C. 1311(a)(1))

1. Additional Allowances:

a. Add $258 if at the time of the veteran's death, the veteran was in receipt of or entitled to receive

compensation for a service-connected disability rated totally disabling (including a rating based on

individual unemployability) for a continuous period of at least 8 years immediately preceding death

AND the surviving spouse was married to the veteran for those same 8 years. (38 U.S.C.

1311(a)(2))

b. Add the following allowance for each dependent child under age 18: *

a. Effective 12/1/12 $301 per child (38 U.S.C. 1311(b))

If the surviving spouse is entitled to A&A, add $301. (38 U.S.C. 1311(c))

If the surviving spouse is entitled to Housebound, add $141 (38 U.S.C. 1311(d))

**DIC apportionment rates approved by the Under Secretary for Benefits under 38 CFR 3.461(b) will be the

additional allowance received for each child.

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Veteran's Death Was Before January 1, 1993

Surviving Spouse's Rates

Enlisted Pay Grades

Rates shown are for surviving spouse only.

See Note: e for additional amounts to be added per child.

E-1 f E-2 f E-3 a,f E-4 f E-5 f

$1,215 $1,215 $1,215 $1,215 $1,215

E-6 f E-7 g E-8 g E-9 g E-9 b

$1,215 $1,257 $1,327 $1,384 $1,494

Warrant Officer Pay Grades

Rates shown are for surviving spouse only.

See Note: e for additional amounts to be added per child.

W-1 g W-2 g W-3 g W-4 g

$1,283 $1,334 $1,373 $1,453

Officer Pay Grades

Rates shown are for surviving spouse only.

See Note: e for additional amounts to be added per child.

O-1 g O-2 g O-3 g O-4

$1,283 $1,327 $1,418 $1,503

O-5 O-6 O-7 O-8

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$1,654 $1,865 $2,013 $2,211

O-9 O-10 O-10 c

$2,365 $2,594 $2,784

Children's Rates

If the Surviving Spouse is also Entitled Additional Separate Award For Each Child Over 18

Rate

School Child: $255

Helpless Child: $513

If No Surviving Spouse is also Entitled Lump Amount Rate for One

Number of Children Total Payable Each Child Share

1 $513 $513

2 $738 $369

3 $963 $321

4 $1,146 $286.50

5 $1,329 $265.80

6 $1512 $252

7 $1,695 $242.14

8 $1878 $234.75

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If No Surviving Spouse is also Entitled Lump Amount Rate for One

Number of Children Total Payable Each Child Share

9 $2,061 $229

*For each helpless child over 18 add $301

**For each additional child add $183

b. Footnotes

a. Surviving spouse of Aviation Cadet or other service not covered by this table is paid the DIC rate for

enlisted E-3 under 34.

b. Veteran who served as Sgt Major of the Army or Marine Corps, Senior Enlisted Advisor of the Navy,

Chief Master Sgt of the Air Force, or Master Chief Petty Officer of the Coast Guard.

c. Veteran who served as Chairman of the Joint Chiefs of Staff, Chief of Staff of the Army or Air Force,

Chief of Naval Operations, or Commandant of the Marine Corps.

d. If surviving spouse entitled to A/A, add $301; if entitled to HB, add $141.

e. Add $301 for each child under 18.

f. Add $258 if veteran rated totally disabled 8 continuous years prior to death and surviving spouse

was married to veteran those same 8 years

g. Base rate is $1,473 if vet rated totally disabled 8 continuous years prior to death and surviving

spouse was married to vet those same 8 years.

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EXHIBIT C

Veterans Pension Rate Table

Veteran - Alone & With Dependents

Date of Cost-of-Living Increase: 12-01-2012

Increase Factor: 1.7%

Standard Medicare Deduction: $104.90

2. Maximum Annual Pension Rate (MAPR) Category

3. Amount

If you are a veteran... Your yearly income must be less than...

Without Spouse or Child $12,465

To be deducted, medical expenses must exceed

5% of MAPR, or, $ 623

With One Dependent $16,324

To be deducted, medical expenses must exceed

5% of MAPR, or, $ 816

Housebound Without Dependents $15,233

Housebound With One Dependent $19,093

A&A Without Dependents $20,795

A&A With One Dependent $24,652

Two Vets Married to Each Other $16,324

Two Vets Married to Each Other One H/B $19,093

Two Vets Married to Each Other Both H/B $21,860

Two Vets Married to Each Other One A/A $24,652

Two Vets Married to Each Other One A/A One H/B $27,414

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2. Maximum Annual Pension Rate (MAPR) Category

3. Amount

Two Vets Married to Each Other Both A/A $32,985

Add for Early War Veteran (Mexican Border Period or WW1) to

any category above $2,831

Add for Each Additional Child to any category above $2,129

Child Earned Income Exclusion effective: 01-01-2000 $7,200

(38 CFR §3.272 (j)(1)) This link takes you to the full regulation; scroll down to get the specific citation.

01-01-2001 $7,450

01-01-2002 $7,700

01-01-2003 $7,800

01-01-2004 $7,950

01-01-2005 $8,200

01-01-2006 $8,450

01-01-2007 $8,750

01-01-2008 $8,950

01-01-2009 $9,350

01-01-2012 $9,750