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New but Improved? An Overview of the New VA Appeals System for Disability Compensation Claims.

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The VA appeals system for disability compensation claims has been confusing and complicated for years. Veterans often give up because they get overwhelmed and exhausted.  The VA is hopeful that the Veterans Appeals Improvement and Modernization Act (AMA) is a more veteran friendly, streamlined process.  Is it? Time will tell.  But in the meantime, here’s a basic overview of the AMA. 

                The AMA went into effect on Feb. 19, 2019. Right now, the VA has TWO appeals systems – the AMA and the legacy appeals system.  Arguably, this does not help with the confusing nature of VA appeals.  However, the legacy appeals system will end when the appeals currently in it are resolved, which will take many years.  All veterans who did not opt in before the AMA took effect will stay in the legacy appeals system until they get a new decision that allows them to get into the AMA.  A veteran does not have to jump into the AMA in response to that new decision, and can instead stay in the legacy appeals system until their case concludes if they so choose.

                Moving onto the AMA itself, if a case is denied at the regional office level, the lowest level of appeal, a veteran now has three options.  First, the veteran can request “higher level review.” This is where a senior adjudicator reviews the decision to, hopefully, reverse it.  The veteran cannot submit new evidence so this is a good choice if the veteran has no new evidence and the law is on her side.  The veteran can submit argument, just not any more evidence.  This is where attorneys perk up because, after all, we are trained arguers.

                Option two is to file a “supplemental claim.”  This allows the veteran to send in more evidence to support their case.  Here’s the rub with this option: the evidence submitted must be “new” and “relevant” to the claims on appeal.  The veteran can also submit argument in addition to the new and relevant evidence.

                The third option in response to a denial by the regional office is to take the case to the Board of Veterans Appeals (BVA) in Washington, DC.  However, there are more options inside this option!  Any veteran who chooses this path must also decide what review lane they want their appeal to be in at the BVA.  Are you confused yet? If so, you are in good company.

                At the BVA the veteran can choose the “direct lane,” which is a lot like higher level review described above because no new evidence is allowed, but argument is permitted.  The benefit of the direct lane is that the case goes to an actual judge and, at least right now, decisions in this lane are made quickly.

                Secondly there’s the “evidence lane” which allows the veteran to submit new evidence (and argument).  However, the veteran must send the evidence in with the appeal or within 90 days of the date the BVA receives the appeal, so if time is tight this can be a dicey option.

                Finally, there’s the “hearing lane” option at the BVA.  If a veteran wants “their day in court,” so to speak, they can request a hearing.  BVA judges used to conduct hearings in every state but not anymore.  If a veteran wants an in person BVA hearing now they have to get to Washington, DC. Also, there are time limits on when new evidence can be sent in, which I won’t go into now for fear of confusing you to the point of no return.

                If the BVA denies the case again, all is not lost!  The veteran can appeal to the Court of Appeals for Veterans Claims OR file a supplemental claim with new and relevant evidence (see my explanation of this option above). 

                What if a veteran chooses an option and then realizes he made the wrong decision?  Veterans can switch options but there are time limits to do so. I will not detail this process in the interests of not making your head explode.

                In light of the above explanation of the AMA with all of its options (and I did not go into all of the rules, deadlines and particularities of each option, of which there are quite a few), some might conclude that it is anything BUT streamlined and veteran friendly.  However, remember that the AMA is brand new and the VA is nothing if not ever-changing.  Which, on that note, please keep in mind that the information in this blog post is subject to change. Also, the VA truly is well intentioned and wants an improved appeals system.  It’s entirely possible that as the AMA moves along, changes will happen that improve the process and really do make it better and easier for veterans seeking disability compensation.   

Attention Veterans: Are You Having Trouble Getting Your VA Disability Benefits?

This blog was posted on the Illnois Legal Aid Online website on 1/7/2019.  The link is below.  I hope it’s helpful!

https://www.illinoislegalaid.org/about/our-work/blog/attention-veterans-are-you-having-trouble-getting-your-va-disability-benefits

 

The “C” File – an Invaluable Tool

A lot of veterans ask me about the VA claims file, or “C file.”  Some request a copy of it, but then aren’t sure how to use it in the way that will best help them get their VA disability claims approved. This is understandable since the files aren’t always organized and normally contain many duplicates that can be hard to handle. The files used to be sent out on paper which wasn’t the handiest because some contain thousands of pages.  Now the files are sent out on disc which is a lot easier to handle and, not to mention, the trees are happier with the VA now!

So the C file is what the VA keeps on every claimant (veteran, survivor, etc.) who has ever filed a claim for benefits. It normally contains the application forms, medical records, military records, copies of C&P exams (for more on these, read my blog titled, “How to Handle a VA C&P Examination”) and other records. The C file is critically important because it provides a history of everything that’s gone on with the filed claims and it can highlight what’s needed for claims to finally be approved by the VA.

I know some attorneys won’t formally take on a VA compensation case until they get the C file and review it. For me it’s case by case. By now I have enough history and experience behind me that I can sometimes go ahead and formally take a case and do what I can to develop it until I get the C file. If a veteran is completely confused about what’s happened in their case and where things stand, I normally have to get the C file and review it before I can commit to that case. This is not too uncommon, and veterans shouldn’t feel bad if this happened to them, because VA cases can be extremely confusing over the many years they often take to be resolved.

Once the C File comes in, which can take an extremely long time – up to a year or more in some cases – it has to be reviewed in a way that’s going to be helpful. Personally, I find the best way is to pop the disc into the computer and review it with the help of an Excel spreadsheet or some other organizational tool. This way each page can be logged into the spreadsheet under “date,” “type of document,” “page number” (so you can easily access the exact page you want to get to later), and “comments.”  C files are never chronological and you will most likely see pages out of order. And I mean WAY out of order. I’ve had files before that had military records from 1968 followed by a medical document from 2010. The way I organize the review allows you to log every page and then “sort” the spreadsheet in chronological order which creates a clear chronology of each claim. This also lets you see what has been submitted and if the VA overlooked anything. Sometimes the C file is a treasure trove of great evidence to support a claim the VA never saw!

The other thing C files can point out are claims that were filed and never decided upon. Say a veteran filed a claim in 1975, the VA didn’t see or act on it, the veteran got discouraged and gave up. Well, that’s a pending claim and, if located in the C file and ultimately approved, it’s possible the veteran could get a benefit back to when it was filed. In other words, the VA would have to pay the veteran back several decades which can be a LOT of money.

Reviewing the C file can be painstaking but it’s worth the time and effort. I once reviewed a file that was more than 1500 pages long, page by page, and I ended up finding TWO documents that allowed me to develop the claim to a successful resolution. Talk about finding needles in a haystack.

Finally, every veteran is entitled to one free copy of their C file. Survivors can also get copies of the file and I have never had the VA ask for payment to send them out. Suffice it to say, the C file is invaluable tool if used properly.

Questions? Call The Veteran’s Practice, Ltd.!

Secondary Service Connection: When a Service Connected Disability Causes a Second Disability

If a veteran’s service connected condition leads to another disability, he might be able to get that other disability “secondarily” service connected.  If so, the VA will pay the veteran an additional amount of compensation every month for that secondarily service connected condition.  A good example of this is when a veteran has a chronic physical disability that’s service connected – like a back injury from a truck accident in the military – and the pain and limitation from that disability leads to depression.  In this case, the veteran might be able to get compensation for depression.  Another example is when a veteran is service connected for a left knee injury and starts favoring the right leg as a result, which then leads to a disability in the right knee.  Below are some tips on how to obtain secondary service connection.

1)   Use the right form.  The VA often rejects claims that aren’t on the proper forms.  As of the date of this blog, the form to use for a claim for disabilities secondary to an existing service connected disability is VA Form 21-526b.  The VA often changes its forms and updates them, so veterans should make sure they have the most recent form.  Usually the most updated forms are available online.

2)  Do some “homework” before the application is submitted.  To get a condition secondarily service connected, veterans need to have a medical diagnosis.  They are also going to need a connection, or a “nexus,” between the secondary condition and the service connected condition.  Veterans should ask their doctors for a letter stating what the diagnosis is and that it “at least as likely as not” resulted from the service connected condition.  The “at least as likely as not” language is what the VA looks for from treatment providers, so veterans should ask their doctors include it.

3)  Ask relatives and others for statements.  Who can say they have seen the veteran’s service connected condition cause a second one?  Often a spouse, sibling, parent, or friend can say something like, “since the veteran hurt her ankle so badly in the military and hasn’t been able to do what she used to and can no longer walk that far or drive a car, she has been terribly depressed . . .”   People should use the VA’s “Statement in Support of Claim” form for these statements, or VA Form 21-4138.  Again the form number and name are correct as of the date of this blog but the VA can change forms from one day to the next so people should double check that they are using the right form.

4)  The Veteran should write a statement.  Veterans should also write a statement, using the “Statement in Support of Claim” form explaining how they believe the service connected condition caused the secondary disability.  The veteran should detail when she first started having symptoms of the second condition, how it affects her, and how she’s treating the secondary disability.

5)  Show up and prepare for the compensation & pension exam if the VA schedules one.  If the VA thinks a veteran’s claim for secondary service connection might be valid, they will likely schedule a C&P exam.  This is where a doctor or nurse examines the veteran to confirm the diagnosis and make a judgment as to whether it likely resulted from the service connected condition.  Veterans need to go to these exams or the VA might deny the claim.  And they need to prepare for these exams by making copies of the supportive letters they got from their doctors and other statements and think through how they will explain why the condition was caused by the service connected disability.

6)  Keep copies of everything that’s sent into the VA and put identifying information on every page.  The VA often misplaces documents or they’re not uploaded into the VA system correctly.  Veterans need to be ready to re-send paperwork if this happens.  Because the VA receives thousands of pieces of paper every day, veterans need to put their name and VA file number on each page they send in.  This way if something gets out of order or confused with other papers, the VA knows which veteran’s file they need to put the paperwork in.

7)  Keep after the benefit if it’s denied.  Many solid claims for secondary service connection are denied despite the veteran’s best efforts.  If this happens veterans shouldn’t give up!  They should keep after the claims that should be secondarily service connected and if necessary, enlist the help of an accredited VA advocate.

Questions?  Feel free to contact Catherine Cornell at the Veterans Practice, Ltd.

Military Sexual Trauma & VA Compensation Benefits

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Military sexual trauma, often referred to as MST, is a bigger problem than a lot of people think. Many people are also surprised to learn that MST victims are both women and men.

Most of my clients say they felt mortified by the MST and some say they also stayed silent because they were told by the perpetrators that they’d be attacked again or killed if they said anything. A lot of MST victims often try to forget what happened and don’t tell anyone for many years after their military discharge. One of my clients said he felt too scared to say anything about his trauma for decades after his discharge because he worried his attackers might discover that he told someone about it and seek him out.

I have handled many cases involving veterans who have been sexually assaulted or attacked in service and their mental health is often damaged to the point where, understandably, they can never fully recover. Many of these veterans are diagnosed with post traumatic stress disorder or depression and most have problems with nightmares, flashbacks, isolation, having healthy relationships, and many other difficult issues. Some veterans have problems trusting others or don’t feel safe or comfortable in public, which can make working and having an income very difficult.

Veterans can apply for VA disability compensation benefits if the MST caused them to have mental health problems. What many don’t understand, even some people at the VA, is that claims for MST related mental health conditions are supposed to be treated differently than claims for other mental health conditions.

The veteran still needs a diagnosis and a “nexus” (meaning a doctor or medical professional must connect the diagnosis with the MST). However, the VA has made the third part of getting a VA compensation application approved – proving that the incident in service happened – easier for MST victims.

The VA made it less difficult for MST victims because the VA realized a soldier who has been sexually attacked or assaulted may be deeply embarrassed or ashamed by what happened and cannot bring themselves to report it.  That would mean there are no records of it.

The VA made it easier for MST victims by allowing them to use a wide variety of ways to prove the incident happened. Examples of acceptable evidence includes buddy statements from fellow soldiers who saw the victim during or after the attack or who the veteran confided in about it, family members who know about it, and military records that show the veteran requested a change of station or duty (in order to get away from the perpetrator).  The veteran can also point to medical records that document he or she sought treatment for a physical injury caused by the attack or for stress related issues like headaches or insomnia. Another good source of proof are disciplinary records that show a change in behavior after the attack, like drinking, fighting, or going AWOL.

Additionally, a court case determined that a mental health professional’s opinion that the sexual assault occurred can be used to establish that it did in fact happen. This case has been hugely helpful to veterans who suffered from MST and are seeking disability benefits.

For veterans who are trying to get disability benefits for MST, or for those who are trying to help veterans with this process, it helps to know how these claims are supposed to be handled by the VA. A lot of veterans contact me and say their claim was denied because they don’t have proof that the MST happened. But in most cases there IS proof it happened – you just need to know what the rules are for these claims and what evidence to look for.