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2 Structure of VA and Courts of Review VA =Veterans Benefits Administration (VBA) and Veterans Health Administration (VHA) VBA administers benefit programs: Monthly entitlements,gi Bill, Home Loans VHAoversees and operates all VAhealthcare facilities - VA hospitals, outpatient healthcare clinics, nursing homes

3 VBA Structure Regional Offices (ROs) have original jurisdiction over initial claims, claims to increase current benefits, and claims to "reopen" previously denied claims - If the veteran has ever before filed a claim for VA benefits, the RO will have created a "(-File" for the veteran Practice Tip: The (-file should be requested immediately upon assuming representation. The request should be accompanied by VA Form 21-22a, Appointment of Representative - Send all correspondence to VA by Certified Mail, RRR Decisions are Issued in Rating Decisions (RDs) One year to appeal RDs - Must file Notice of Disagreement (NOD)

4 VBA Stru cture Options: - Decision Review Officer (DRO) at RO - Board of Veterans Appeals (BVA) (Default Option) Recommendation: DRO - Faster, informal, can still appeal to BVA - Practice Tip: Always request a hearing with election ofdro BVA - Washington DC, Travel Board at RO, Videoconference at RO

5 VBA Structure BVA Statistics (2010) - Compensation 27% Favorable Decisions/Reversals 43% Remanded - Pension 15% Favorable Decisions/Reversals 30% Remanded - Receipt of NOD to Issuance of BVA Decision: 1106 Days Compare: Receipt of NOD to Issuance of DRO Decision: 273 Days (2009)

6 Cau rts af Review Court of Appeals for Veterans Claims (CAVC) - Article I Court, but independent of VA U.S. Court of Appeals for Fe'deral Circuit

7 General Eligibility for VA Benefits Characterizations of Service (DOD/Branch of Service) DD Form 214 Honorable Discharge General Under Honorable Conditions Discharge Other than Honorable (OTH) Discharge (Undesirable Discharge) Bad Conduct Discharge (BCD) Dishonorable Discharge OTHs Some statutory bars to benefits If not statutorily barred, VA is required to make an independent determination as to whether the vet's service was "other than dishonorable" despite the OTH Advocating for the OTH Service medical and personnel records Buddy statements Current medical records/medical opinions

8 General Eligibility for VA Benefits Other Options Discharge Upgrades (DoD/Branch of Service) Forums and SOLs - Discharge Review Boards (DRBs) and Boards for Correction of Military Records (BCMRs) - SOLs: 15 years (DRBs), 3 Years (BCMRs) (can be waived) Equity arguments - Can also argue propriety of discharge procedures Success rates - Vary, hard to obtain current figures Pros and Cons Pros: New DD214 for employment purposes, generally binding on VA (limited exceptions with DRBs), PTSD cases given expedited treatment and special consideration Cons: SOLs, timeframes vary and are unpredictable, success rates vary and are difficult to pin down, no contacts within boards as with RO, BCMRs will not conduct travel board hearings Insanity Despite ((dishonorable" service, vet is eligible for benefits if VA determines that he/she was ((insane" at the time of the acts leading to the discharge

9 VA Benefits: Service-Connected Compensation Monthly compensation for a disability that is related to military service Three elements to every compensation claim - Evidence of an in-service injury or illness - Medical evidence of a current medical condition - Medical evidence linking the current medical condition with the in-service injury or illness

10 Service-Connected Compensation Evidence of an in-service injury or illness - Evidence typically found in Service Medical Records (SMRs) and/or Military Personnel Records (MPRs) Practice Tip: Never rely on VA to obtain records on a veteran's behalf Current Lay Statements Vets' sworn statements and/or sworn buddy statements are lega liy sufficient but VA routinely ignores - The use of drugs or alcohol (D&A), even if formally diagnosed as a medicai condition, does not, by itself, amount to evidence of anin-service i II ness D&A is considered "willful misconduct"

11 Service-Connected Compensation Evidence of an in-service injury or illness A Special Case: Claims for Post Traumatic Stress Disorder (PTSD) An in-service diagnosis of PTSD and/or in-service symptoms of PTSD are not required to prove the in-service element of a PTSD claim A veteran can still meet the "in-service" element of a claim by proving the existence of an inservice "stressor" A stressor is presumed to be true and no corroborating evidence of the stressor is necessary if the veteran engaged in combat with enemy forces A stressor is presumed to be true and no corroborating evidence of the stressor is necessary if it is (1) related to a veteran's fear of hostile military or terrorist activity and (2) is consistent with the places, types, and circumstances of service Practice Tip: Advocate should provide VA with as much information as possible regarding the veteran's stressor and overall service, including dates of service, location(s) of overseas service, duty assignments (MOS), awards won, and any other information establishing the "places, types, and circumstances of service," including news articles, book excerpts, and descriptions from unit/ship websites, military blogs and chat rooms

12 Service-Connected Compensation Evidence of an in-service injury or illness - A Special Case: Claims for PTSD If a veteran's stressor is not related to a fear of hostile military or terrorist activity, corroborating evidence of a stressor is required If the veteran is claiming PTSD based on a military sexual trauma (MST), evidence of ((behavior changes" may be sufficient for corroborating the trauma if the trauma was not reported during military service

13 Service-Connected Compensation Medical Evidence of a Current Disabilit y - Veteran must have a current disability as indicated by a medical professional (MD, RN, NP) - Medical records must indicate the level of disability so as to allow VA to rate (and pay) the disability in accordance with VA's Rating Schedule and Rat e Ta ble - Compensation and Pension Exams (C&P) provided by VA Provided even if unnecessary Practice Tip: It is helpful if your veteran brings evidence of his/her disability to the C&P exam. Advocates sh ould provide vetera ns with these medica I records

14 Service-Connected Compensation Medical evidence linking the current disability with the in-service injury or illness Direct Service-Connection Medical evidence needed even in obvious cases PTSD Cases: PTSD must be linked to the in-service stressor, not pre or post-service traumas Secondary Service-Connection Practice Tip: Joint injuries and diabetes-related conditions are particularly susceptible to 2ndary SC Practice Tip: Keep in mind the impact of physical injuries on mental health - Hearing Loss/Tinnitus Aggravation of a pre-existing condition The Presumption of Soundness VA must establish by clear and convincing evidence that an in-service injury or illness pre-existed military service Presumptive Service Connection: Presumptive service-connection is dependent on certain conditions being met. Conditions may include location of service, dates of service, exposure to certain chemicals, or manifestation of the illness to a certain degree within a specific time after discharge from service

15 Service-Connected Compe sati n The Standard of Proof A fact is established if it is "as likely as not" to be true The "benefit of the doubt" should always be given to the veteran Effective Dates and Income Limitations Effective Date The effective date is first day of the month that follows the month in which the claim was received The relevant claim is the most recent claim. Except in rare circumstances, benefits will not be awarded retroactive to the date of a previously denied claim that was not timely appealed - Exceptions: Clear and Unmistakable Error No income limitation Exceptions: (1) 100% SC for mental illness and (2) Total Disability Based on Individual Unemployability (TDIU) Rates: 10% =$127/month (tax free) 100% = $2,769/month (tax free)

16 Service-Connected Compensation Total Disability Based On Individual Unemployability (TDIU or IU) - 100% payment rate even though the veteran is not rated 100% per the rating schedule - Eligibility: Veteran must have at least one serviceconnected disability rated at 60% or two serviceconnected disabilities totaling 70% - VA will consider education and occupational history, but not age or non-service connected disabilities - VA will not raise this issue unless a claim is filed for IU benefits

17 Service-Connected Compensation Reopening Prior Claims Veteran must submit new and material evidence New evidence is evidence that has never been submitted to VA Material evidence is evidence that pertains to a previously unestablished fact New evidence pertaining to an in-service stressor is almost always considered new and material in PTSD cases }} Evidence of combat action }} Evidence pertaining to the places, types, and circumstances of a veteran's service }} Evidence of a non-combat accident or trauma }} Evidence of ((behavior changes" for PTSD/MST claims New medical opinions from a medical professional linking a veteran's current condition to the service are almost always considered new and material evidence Updated medical records are rarely deemed new and material evidence because they generally do not relate to an unestablished fact )} Claims for a rating increase are not considered claims to reopen Newly obtained service records are considered new and material evidence and, if the underlying claim succeeds, will lead to an earlier effective date

18 Non Service-Connected Pension Monthly payments to wartime veterans who are totally and permanently disabled Checklist: Wartime Service: Congress has designated specific dates that satisfy the wartime requirement Wartime service does not require that the veteran have engaged in combat or even served overseas Before 1980, a veteran need only have served a total of 90 consecutive days of active duty service, one of which was during a period of war After 1980, a veteran must serve 24 months of active duty service or the full term for which the veteran was called to active duty, one of which was during a period of war Total and Permanent Disability Consider all disabilities, even if they are not related in any way to active duty service Disabilities are rated, but only for purposes of determining if a veteran is 100% disabled, not for partial payment purposes IU for Pension: As with compensation, veterans can receive a pension even if disabilities do not total 100%» Note: With pension IU cases, VA is permitted to consider age Qualifying Discharge: Under conditions ((Other than Dishonorable"

19 Non Service-Connected Pe nsion - Payment Amount: $1,021/month - Income Limitation: $1,021/month - Dollar for dollar reduction for all other income received - Veterans must report all other income to VA upon receipt of the pension, and must report all income changes while receiving the pension Resource Limit: Vague standard, but very generous. Primary residence not included - Aid and Attendance Benefits - House bound Benefits

20 Non Service-Connected Pension Overpayment Issues Causes Dual receipt of VA pension and 55!' benefits Receipt of VA benefits (pension or comp) while veteran had an outstanding felony warrant or warrant for VOP '" Result VA attempts to collect the debt by recouping veteran's entire benefit check Options Payment plan through VA's Debt Management Center (3-5 years) Request a waiver of the debt (30 days/180 days).. File a NOD of disagreement within 1 year of VA's decision to suspend benefits Dispute the amount of the debt/request an audit (30 days/no limitation) ",,\ \

21 Non Service-Connected Pension - Family members of veterans whose death was caused by service-connected injuries may be eligible for benefits - Family members of veterans who received compensation for 5-10 years before death may be eligible for benefits - Spouses of veterans who received the pension may be eligible for a IIdeath pension," although this pays less than the standard pension for a single veteran