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Sean Kendall, Attorney at Law
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Veterans Benefits Competent Attorney
Veterans Benefits Competent Attorney

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VA backlog is shifting its backlog from original claims, which was over a million a little over a year ago, to the Board of Veterans' Appeals.  The backlog before the BVA is now 300,000 cases, which will take the Board six years to decide.
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National Women Veterans Association of America executive director Tara Jones.
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Big win in unemployability case by associate attorney Timothy Franklin, review online.  
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Congress has decided as part of the budget deal reached this December 2013 to cut military retirees benefits.  Specifically, the cost of living increase for retirees will be reduced in the future.  This only is for retirees who received a medical disability retirement from the military.  Those that receive a retirement from the military based on points or 20 years of more of service are not effected.  The move is expected to save several hundred million dollars over the next decade.  Most military retirees who retire for medical reasons should also be receiving VA benefits in addition to military retirement, and if they are receiving more than a 50 percent VA benefit, there should be no offset of VA benefits from military retirement, under a program entitled Concurrent Receipt Disability Payments (CRDP).  Combat veterans that receive both VA and retirement also are eligible to receive Combat Related Special Compensation (CRSC) if VA benefits are received due to combat injuries, injuries sustained during combat maneuvers, or as a result of using an instrumentality of war.   
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What Types of Family Owned and Other Businesses May a Veteran Work for And Still Obtain Unemployability Benefits?

In my experience, the VA is still likely to award a 100 percent unemployability benefit veterans to veteran that work in a protected environment that the veteran or family controls.

 In my office, we have helped veterans win awards of a 100 percent unemployability benefit where the veteran worked as the manager of a mobile home park that he owned.  The job was limited and he could create his own hours.  
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I wrote this book for veterans and their families: people who are looking for guidance on how to obtain crucial VA benefits. While the book isn’t designed to educate you on all of the ins and outs of VA regulations, it has enough information to put you on the right track to get the benefits you deserve. It is meant to be your guide as you try to navigate the confusing VA benefits system and familiarize yourself with the appeal process.  

http://www.seankendalllaw.net/reports/va-benefits-handbook.cfm
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Veterans Service Representative or Lawyer?
 
You should be aware that you don’t always need a lawyer in a VA case. If you are filing  for the first time for benefits, you may be able to handle the case on your own or with  the help of a Veterans Service Representative (VSO). These representatives offer free 
legal services to veterans—you do not have to be a member of their organization. The best way to determine if your case should be handled by a lawyer or a VSO, is to ask. 
You can call my office and talk with me about your case. I will be able to explain how to  best approach it and whether or not you need an attorney’s help.
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I. LITIGATION OF VETERANS CLAIMS BEFORE THE U.S. DEPARTMENT OF 
VETERANS AFFAIRS (VA)

A. REGIONAL OFFICE

B. BOARD OF VETERANS’ APPEALS



II. TYPES OF CLAIMS

A. Service connection of a Disability

B. Claim for increased disability compensation.  

C. Claim for non-service-connected pension for veterans that served during a period 
of war.  Income dependent.

D. Claims of spouses, children, and parents of deceased veterans.  Death Pension 
(widows only) and Dependency and Indemnity Compensation (DIC).  Generally, DIC benefits are awarded where the death of the veteran is due to a disability that is or should have been service-connected.  Also, DIC benefits available where veteran received a 100 percent rating for a period of ten years.


E. Other claims (Home loans, debt waiver, children of veterans affected by Agent 
Orange related spina bifida, vocational rehabilitation, etc.)

F. Initial Claim.

1. Eligibility.

A veteran, veteran’s spouse or dependant of a veteran may be entitled to disability benefits if the veteran suffers a service-connected disability resulting from disease or injury incurred in or aggravated during active military, naval, or air service. 38 U.S.C. §101(2); 38 C..FR § 3.1(d).  It is important to note that it is not required that the disease or injury occur in the line of duty (on the job) only that the person be in active military service. 38 U.S.C § 101; 38 C.F.R. § 3.6.  For active military this means at any time of the day or week whether at work, at home or elsewhere.  For guardsmen/reservists it means only during the window of time that they are on active duty whether it be for mobilization or training.  While on active duty guardsmen/reservists are also covered whether on the job or not just as active duty personnel are covered. 38 U.S.C § 101; 38 C.F.R. § 3.6.

In all cases, for the veteran to qualify to apply for disability benefits the veteran must have been discharged under other than dishonorable conditions. 38 U.S.C. § 101(2), 38 CFR § 3.1(d) 2006.  

2. Service-Connected Disability.

In order to establish a service-connected disability the veteran must establish that he has a current disability that was precipitated by a disease, injury or event that was service-connected.  The disability must result from disease or injury sustained in or aggravated during active duty, active duty for training or inactive duty for training.  These terms are defined in 38 U.S.C. § 101.  Also, the disability must have occurred in the line of duty and discharge or release must have been under other than dishonorable conditions.  The service records of the service-member are generally controlling on the issue a veteran’s status.  

3. Benefit of Doubt Doctrine (38 U.S.C. § 5107).

If there is an approximate balance of positive and negative evidence after consideration of all the evidence, this doctrine requires that the benefit of doubt as to resolution of each respective issue shall be given to the claimant.

4. Duty to Assist (38 U.S.C. § 5107(a)).

The VA has a statutory duty to assist veterans in the development of facts pertinent to their respective claim, including among other things, the collection of medical records when necessary. Murphy v. Derwinski, 1 Vet.App. 78 (1990), and the providing of a medical examination in most cases.  See Robertson v. Prinicipi, (251 F.3d 1378, 1384 (Fed. Circ. 2001) for additional discussion on the VA’s duty to assist.

5. How Does a Veteran Make a Claim for Disability Benefits?

Practically any expression by a veteran that he or she might be entitled to benefits should be treated as an informal claim, triggering a response from the VA, but a formal written claim should be filed within a year of the informal claim. 

A claim for veterans disability benefits is initiated AFTER departure from military service by filing an application with the nearest VA Regional Office (the Indiana office is located at 575 North Pennsylvania Street, Indianapolis, IN 46204-1526) or via the Internet at http://vabenefits.vba.va.gov/vonapp.

A claim may be for an original determination of service connection, an increased rating for an existing service connected condition, or it may be for an increased rating for an existing service connection. It is not to the veteran’s advantage to be too specific about their medical condition or basis of claim. Pursuant to Robertson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) the VA has a duty to “determine all potential claims raised by the evidence, applying all relevant laws and regulations.” 

6. When Must a Claim Be Made?

A veteran should file a claim when he becomes aware of it but may file a claim at any time and may also at any time ask for reconsideration of a prior claim or an increase in disability rating if he has additional evidence.  .

III. CLAIMS PROCESS BEFORE VA

A. VETERANS FILES CLAIMS.

VA Response is to develop the claim by obtaining records, scheduling a 
medical examination, if necessary, and promulgating a rating decision.  A decision from the VA contains a notice letter and a decision from a VA decision maker.    

NOTICE LETTER

The VA is mandated to give written notification to the claimant and his representative of an adverse decision on any claim. 38 U.S.C. §5104; 38 C.F.R. §3.103(h). It is the date of the Notice Letter which begins the one year period for filing a timely NOD. The VA is required to advise the claimant of his appellate rights in the Notice Letter and if the Notice Letter does not specifically advise the claimant of his appellate rights, the time to file the NOD is tolled. You many get veterans who bring in a RD telling them they did not file a timely NOD or they may bring in a RD that is over one year old and ask you for help. You may be able to salvage the case if the Notice Letter does not advise him of his appellate rights. If your client says he was never sent a copy of the RD, get the claims folder and see if the Notice Letter was sent to the claimant's correct address, including zip code. If not, the claim is still open. If the claimant had a representative at the time the Notice Letter was issued and a copy was not sent to the representative, then the claim remains open. 38 U.S.C. §5104; 38 C.F.R. §3.103(b)(f). The RO has the discretion to extend the period in which an NOD must be filed if good cause is shown, but since the BVA can second-guess the RO, don't risk it. Simply file the NOD.

RATING DECISION

This document is the basis for your appeal. Any RD on a claim for service-connection determines three (3) issues:  1. Service-connection; 2. Percentage of Disability; and, 3. Effective Date.

In reviewing the RD, check to make sure the RD decided all claims, direct or inferred. One of the traps the VA has laid out for veterans and their untrained representatives is the "deemed denied" doctrine. In the case of Deshotel v. Nicholson, 457.F.3rd 1258, 1261 (Fed. Cir. 2006), the Court holds that when the veteran files more than one claim with the RO at the same time and the RO's decision acts on only one and does not address the other, the second claim is "deemed denied" and the appeal period starts to run when the RD is issued. 

The VA also is charged with considering all possible ways for which a veteran may be entitled to service-connected benefits, e.g., maybe it was not PTSD, but rather a generalized anxiety disorder that began in the service. 38C.F.R. §3.303-3.313 (2007).

Did the VA comply with its duty to notify and assist the veteran before issuing its decision? 38 U.S.C. §5103A and 38 C.F.R. §3.159 (2007).

Does it appear the Rating Specialist reviewed and considered all evidence submitted and in the claims folder? The usual mistake is that the Rating Specialist will consider the unfavorable parts of the examination (VAX) a/k/a compensation and pension (C&P) examination as if they emanated from the oracle at Delphi, ignoring the favorable parts of the report, favorable medical evidence, the veteran's statements and lay evidence.

Another common mistake is that the Rating Specialist will trade in his white shirt and skinny tie for a stethoscope, white coat with his name monogrammed on it and play doctor. The Rating Specialists are not allowed to make their own medical decisions. Medical opinions are necessary to establish a medical fact.








B. IF CLAIM IS DENIED, VETERAN HAS ONE YEAR TO FILE NOTICE OF 
DISAGREEMENT


NOTICE OF DISAGREEMENT 


What is this thing called a Notice of Disagreement? It must be pretty important as it is needed to appeal a case and it is only after it is filed that fees may be charged by an attorney. The Notice of Disagreement (NOD) is filed after the claimant receives an unfavorable Rating Decision (RD) from the Regional Office (RO). It is mandatory and you cannot get around filing one. 38C.F.R. §20.201. 

But what do I put in the NOD? To answer this, you need to look at what generates the need for an NOD, namely, the Rating Decision (RD). 

The RO will generate two separate documents when it issues a RD. They are the: Notice Letter and Rating Decision.

There is no special VA form for a NOD. It must be a written communication from the veteran or his representative. (Query: Is an e-mail sufficient?) It must be sent to the RO that issued the adverse RD. It must be filed within one year from the date on the Notice Letter. There is no special language required, however, after the case of Gallegos v. Principi, 283 F. 3rd 1309 (Fed. Cir.), cert. denied 537 U.S. 1071 (2002), it is my opinion that it is important that you specify in the NOD that the claimant’s intent is to appeal to the Board of Veteran’s Appeals.  

NOTICE OF DISAGREEMENT – NOTICE OF INTENT TO APPEAL

The Gallegos case basically held that if the veteran, although they indicated that they disagreed with the Decision, did not indicate that they intended to appeal it was not a valid NOD. The VA is supposed to liberally construe correspondence when trying to determine if a statement is, indeed, a NOD. Anderson v. Principi, 18 Vet. App. 371 (2004). This case can be useful when trying to convince the RO that a letter from the veteran was an NOD to secure an earlier Effective Date. If the RD addresses multiple issues, the NOD should identify those issues with which the veteran disagrees. If the veteran's NOD is deficient in any way, the RO is required to ask for clarification. 38 C.F.R. §19.26 (2007), but all too frequently, the RO simply issues a Statement of Case (SOC) telling the veteran the NOD was not sufficient. It should be noted that it is the date of the NOD that triggers entitlement to fees. If the NOD is on or after June 20, 2007, the advocate may enter in to a lawful fee agreement.

When should I file the NOD? Yesterday, if possible! With the claims backlog and the VA considering appeals in the order of the filing of the NOD, the sooner the better. 

Do I even file an NOD? If the veteran comes to you without a winnable case, I contend it is not only fool-hardy to file an NOD, but also unethical. Many times you do a real service to a veteran who has been lead to believe for decades he has a winnable case by simply telling him what the law requires for him to win and the fact that he does not have the evidence necessary to win. Many veterans do not realize that in order to get service-connected benefits you have to prove that the condition began in the service. 

Do I file a detailed or generic NOD? I prefer a short, but detailed NOD. Let the RO know you understand the issues, what evidence supports your arguments and what relief you want. If you are faced with an appeal deadline approaching, do not have the claims folder or enough evidence yet to make a detailed argument, go ahead and file a generic NOD but tell the RO you will supplement it when you receive the necessary documentation – AND THEN DO IT! Be aware of a recent CAVC case, Robinson v. Mansfield, decided adversely to a veteran which basically said there was "issue exhaustion" in VA law and that a veteran represented by an attorney or agent at the agency is held to a higher standard of care in complying with VA laws and regulations than one who is pro se. That case will be going up to the Federal Circuit.

ELECTON OF TRADITIONAL APPEALS PROCESS OR DECISION REVIEW
OFFICER


The filing of the NOD does not send the case automatically to the Board.  Years of continued litigation will continue at the VA Regional Office before the case reaches the Board.

After the NOD, the RO will provide a notice of election of further appeals process.  Do I select the Traditional Appeal Process (TAP) or Decision Review Officer Process (DRO)? The TAP results in a Rating Specialist or DRO issuing a Statement of the Case (SOC) based on the evidence as it stood at the issuance of the RD. It is not a de Novo review. 

I use the TAP when:

1. It is a novel question of law that will wind up at the BVA and probably CAVC.
2. I have already been through all the DRO's on previous appeals.
3. It's a certain RO loser, e.g., the DRO would have to make a tough, but legal call that is against the established perceived law, e.g., award IU when the veteran is only 50% disabled for PTSD.
4. No additional evidence is needed.
5. RO's reputation.
6. It is a faster track to the BVA.

The DRO, de Novo review allows the DRO to review and consider all relevant evidence de Novo, giving no deference to the RO. They may develop evidence, order exams, hold informal conferences, or conduct a personal hearing. 38 C.F.R. §3.2600(a)(c) (2007). I use the DRO process:

1. If I have evidence to submit.
2. If I have an argument to submit.
3. If I want a hearing.
4. If I am familiar with the DRO's.
5. A possibility of an informal hearing.

In my NOD I will put in bold type the type of review that I want. This saves several months of processing time as then the RO does not have to send out a letter asking which type of appeal process I want and I also do not run the risk of forgetting to make the election within the appropriate time frame. Namely, sixty (60) days after receiving the election letter. 

DEVELOPMENT LETTERS

Under current practice, this letter should theoretically come out prior to the filing of the appeal, but the procedure varies by office.  

The filing of the NOD fires up the RO's word processor and they start spitting out correspondence right and left. The Development Letter (Dev L)  purports to say what the claimant needs to do to win, but, in reality it is usually simply a form letter filled with meaningless generalities. In the VA's defense, I am seeing more Dev L's where they specifically tell the veteran what is needed to win, so be sure to read them carefully, even though your first instinct is to file them away. The Dev L also gives you sixty (60) days (usually) to respond. Do not ignore the Dev L deadline. If you do not respond you will see a line in the unfavorable RD as follows: "We sent you a letter dated September 8, 2007, telling you what we needed in your claim. Since we did not hear from either you or your representative, we are denying your claim."

Response to Dev L : If you do not have the c-file and you need it, ask for an extension of time    
  to a Date Certain, calendar it and keep on the RO for the c-file.

                              :  If you have additional evidence in hand, respond, even if only partially.  
  Update as evidence is received.

                              :  Is use the Dev L as another opportunity to make an argument.

Importance of Dev L :  This triggers you to begin work in earnest, if you have not already.

:  Call the client
• Find out if any treatment.
- Get records.
• Find out if witnesses.
- Get statements.
• Find out if any additional evidence.
- Get it.
:  Review file to:
• Narrow issues
• Determine evidence needed
• See what needs to be explained away
• 8940 on file?
• 686c on file?

You have diligently done your work and eventually the RO responds to your NOD.

What do they send?

STATEMENT OF THE CASE

You tried your best, but the RO just issued a Statement of Case (SOC) indicating the claim is denied. Technically it is not a "Decision" as its only function is to tell you the status of the case, but every client thinks it is a decision, so you might as well also.

The SOC consists of a lot of pages, most of which is simply a waste of our natural timber land. The first page or two give a lot of information. Look down to where it says: "Claimant Notified of Decision" – This date is important as you have up to one year from this date to perfect the appeal by filing a VA Form 9 which normally only has a sixty (60) day statute of limitation. You will see "Evidence Considered" – Make sure you have it all and request an updated c-file. You then have a plethora of pages in which the RO simply puts in the statutes and regulations it considers relevant to the case. Although quite boring, when starting out in this field, it is a quick way to familiarize yourself with the relevant law. You then pass on to the section entitled "Reasons and Bases" which is where they explain why they did what they did. This is usually just a cut and paste from the RD since this is usually not a de Novo review. 

Some of the SOC's can be tricky to interpret. They appear to be denials, but buried in the language is a notice of an upcoming favorable decision. It should be pointed out that if the SOC finds that there should be an increased rating, it will not be the final say-so as a Rating Decision has to issue setting the percentage, effective date and payment rate.

Once you get the SOC you need to immediately once again begin to assess your case. You need to do the same analysis you do when you get the RD. "Is everything already of record so that I need nothing to get a favorable decision?" "Is there evidence/argument that needs to be submitted to enhance the chance of success?" If you answer the second question in the affirmative, you have come to a very important "fork in the road." You need to make a decision that will be based on your knowledge of the case, the likelihood of success at the RO, and the need for a quick trip to the BVA. It is a decision that usually runs counter to your intuitive instincts. It is what, back in my trial lawyer days, we called "woodshedding the evidence." Basically, that means making a conscious decision not to send in evidence to the RO in response to the SOC. Why? Due to a new animal…

SUPPLEMENTAL STATEMENT OF THE CASE

This little puppy is rarely discussed and when you receive the first one, panic may set in. Actually, it is of little importance. Let me explain. It is defined in 38 C.F.R. §19.31. It is used whenever the RO gets "additional pertinent evidence" after the SOC is issued. A response to the SSOC is optional, unless you have not yet filed the substantive appeal in a VA Form 9 on a new claim or issue that is raised in the SSOC for the first time.  If  you have not yet filed the VA Form 9, the issuance of an SSOC does mean your original sixty (60) day time period within which to file the VA Form 9 is extended as to any issue the SOC covered. I do my level best not to get an SSOC as it simply delays the case going to the BVA. Below I have listed two separate timelines. I believe this illustrates my point. 

Case #1 Case #2 
RD RD
NOD NOD
SOC SOC
VA9 VA9
     + Get new evidence     + Get new evidence 
     + Send evidence to RO Case certified to BVA
     + "VA time" passes Evidence sent to BVA
SSOC issues
Case certified to the BVA



IV. Board of Veterans Appeals (BVA)

1. Generally.

The Board of Veterans Appeals, located in Washington, DC, makes decisions on appeals on behalf of the Secretary of Veterans Affairs.  The claimant/appellant may present his/her case in person to a member of the Board at a hearing in Washington, DC, at a VA regional office or by videoconference.  Board decisions are reported at www.va.gov/vbs/bva.  This website also contains a plain language pamphlet, “Understanding the Appeal Process”.  A copy of the pamphlet may also be obtained by requesting it in writing at Chief Bailiff (011), Board of Veterans Appeals, 810 Vermont Ave., N.W., Washington, DC 20420.

2. Process.

A BVA appeal can take as long as two and a half years. After the Regional Office receives a VA Form 9, it should certify the appeal and notify the BVA that there is an appeal so the BVA can docket the case.  During the pendency of the appeal the BVA will ask for any additional argument and may also order its own independent medical opinion (IME).  If an IME is requested the veteran will be given an opportunity to review and respond. 

3. New Evidence.

Unlike most appellate rules, the veteran appellant may submit additional evidence during the appeal. If new evidence is submitted the Regional Office must then issue a Supplemental Statement of the Case (SSOC), re-adjudicating the claim with the new evidence. 

4. Hearing.

The veteran is entitled to a hearing if requested, which may be held at the RO, by videoconference or at the BVA in Washington DC. The veteran can be represented by a veteran service officer, or an attorney, or can appear alone. Witnesses can testify. Additional documents, including affidavits, may be submitted by the veteran. However, the BVA may only consider this additional evidence if the veteran waives the consideration by the Regional Office Otherwise the case must be returned to the Regional Office. 

5. Decision.

BVA ultimately issues a Decision that is very similar to the Statement of the Case in that it references applicable laws and regulations, evidence considered, and provides an explanation of the basis(es) of its decision.  Its choices are to deny the claim, to remand the claim for further development, or to grant the claim either in whole or in part. If the BVA rules in favor of the veteran, the case has to be sent back to the RO for calculation and payment of benefits. 

6. Appeal.

The veteran has 120 days from the date of the BVA decision to file an appeal.   

V. U.S. Court of Appeals for Veterans Claims (CAVC)

1. Generally.

A final Board of Veterans Appeals decision that does not grant a claimant the benefits desired may be appealed to the U.S. Court of Appeals for Veterans Claims (CAVC), an independent court, not part of the Department of Veterans Affairs.

The CAVC is an Article I administrative law court that meets in Washington DC.  The court is made up of seven judges who sit for 15 year appointments.  Appellants may represent themselves (initially a majority are pro se) before the court or have lawyers or approved agents as representatives.  Oral argument is held only at the direction of the court.  

The court’s website, www.vetapp.gov, contains court decisions, case status information, rules and procedures, and other special announcements.  The court may also be contacted at Clerk of the Court, 625 Indiana Ave. N.W., Suite 900, Washington, DC 20004 or by phone at 202-501-5970.

2. Initiation of Appeal.

Jurisdiction of the Court is invoked by the filing the Notice of Appeal which should be accompanied by the $50 filing fee (may be waived), a Notice of Appearance, and a copy of the fee agreement.

3. Process.

The Secretary of Veterans Affairs is the Appellee and is represented by the Office of the General Counsel of the Department of Veterans Affairs, Group 7 (GCO).  The GCO will prepare the Designation of the Record from the veteran’s file.  

If the veteran disagrees with the Designation of the Record he has 30 days after its filing to identify the records that were or should have been before the BVA.  This is referred to as the "Counter Designation of the Record." 

The court hears disputes over the record designation and issues a ruling after which the GCO compiles the official record to be used by the Court and mails a copy to the veterans. 

Briefing time limits are: 60 days for the appellant veteran from receipt of the Record; 60 days for the Appellee’s Response Brief from receipt of the Appellant’s Brief; and 14 days for the Appellant’s Reply Brief. 

4. CAVC Decision.

The CAVC may affirm, remand or reverse the BVA decision.

5. Appeal from CAVC.

Either party may appeal a decision of the court to the U.S. Court of Appeals for the Federal Circuit and may seek review in the Supreme Court of the United States.

VI. COMPENSATION.

A. Nature of Benefit.

Disability compensation consists of a monthly payment by the DVA to a veteran for service-connected disability.  The payments are based upon disabilities with rating of 10 percent up to 100%.  It also provides for special monthly rates for certain serious disabilities.  Multiple disabilities may be claimed and separately rated, however, a combined ratings table is used by the DVA that progressively reduces the combined rating as the separate ratings increase.  38 CFR § 4.25. As an illustration, this means that 30% and 40% don't equal 70%.  This is commonly referred to as "VA math".  Also, a 100% rating may be given to a veteran who has less than 100% disability, but who is unemployable because of service connected disabilities. 

B. Payment Rates.

The Compensation Rate Table for disability payments can be found at www.vba.va.gov/bln/21/Rates/comp01.htm.  See Appendix A for current payment rates as of December 1, 2006.

C. Offsets and Taxability.

The disability payments are offset by military retirement pay but not Social Security benefits.  VA disability income is not considered taxable income by the Federal Government.

D. Compensation v. Pension. 

A pension is money paid as the result of any total disability which renders the veteran in need of financial help. The disability need not be service connected. Pensions are needs based welfare and are substantially less in amount than compensation. Pensions are only available to veterans who served during a period of war. A pension is paid in a flat amount, less offsets for other income. 

E. Dependent Benefits.  

The VA also pays both compensation and pensions to widows and children of disabled veterans in certain limited situations. 

VII. ATTORNEY’S ROLE.

A. Historical Perspective.

1. 1862-1988.

An archaic and draconian Civil War era statute effectively excluded lawyers from initial administrative appeals of disability claims.  Initially, fees were limited to $5.00 and increased to $10.00 in 1864 which remained unchanged until 1988.  

2. 1988-2006.

a. The Law. 

The Veterans Judicial Review Act of 1988, specifically 38 U.S.C. 5904, only allowed a veteran to have legal representation after the Board of Veterans Appeals first made a final decision in the case and even then only within one year after receiving an unfavorable decision.  

b. Exception.  

Attorneys could be paid by a disinterested third party and attorneys could represent claimants before the regional offices and the Board if their services were rendered for free. 38 U.S.C.S. § 5904(c); 38 C.F.R. § 20.609(d)(2) (2005).   According to the VA a person is “interested” if that person is the spouse, child, or parent of the claimant, or if that person resides with the claimant or appellant. 

c. Fee Limitations.  

The fee could not be a contingent fee, it had to be “reasonable” as that term is perceived by the VA, and the attorney had to sign a statement that there was no agreement between the veteran and the third party that the veteran was going to provide anything of value to the third party.  This limitation only applies in instances where a disinterested third person pays for representation prior to a decision from the BVA and does not apply after a decision from the Board of Veterans Appeals. At that point the veteran was free to enter into an into a contingent fee agreement. 

d. Agents.  

Free assistance in the claim process is provided to veterans by the VA.  However, over the years various veterans’ groups including the American Legion and Veterans of Foreign Wars among others have developed as a part of their core mission a group of Agent volunteers to assist veterans.  Their primary role is in guiding the veterans through the collection of records and completion of forms.  Their role does not include acting as an advocate on behalf of veterans.  

3. 2006 – present.

At the end of 2006 the 109th Congress passed legislation to allow veterans to have legal representation earlier in the appeal process.  The new legislation contained in the Veterans Benefits, Health Care, and Information Technology Improvement Act of 2006, S. 3421 as amended, essentially repeals the limitation of 38 U.S.C. § 5904, which only allowed a veteran to have legal representation after the Board of Veterans Appeals first made a final decision in the case and even then only within one year after receiving an unfavorable decision.  This new law allows veterans to have legal representation following their first adverse ruling. 

This new legislation is not a wholesale repeal of the law restricting legal representation.  The new law still does not permit veterans to have legal representation in the initial claim stage, arguably the most important stage; it permits the Secretary of Veterans Affairs to promulgate regulations on who is a qualified agent to represent veterans and lawyers will have to file fee assignments with the secretary.  

The effective date of these new changes was June 20, 2007, which was 180 days after the date of enactment of December 22, 2006.  As a practical matter this means that claimants that have filed a Notice of Disagreement on or after June 20, 2007 are entitled to counsel who can charge a fee under this new legislation from that point forward.  Otherwise, the claim is treated as operating under the earlier provision meaning that representation/fee charging cannot occur until after the first final decision of the BVA.

B. Fee Agreements.

1. Types. 

The following fee types are allowed pursuant to 38 C.F.R. § 20.609(e):

a. Fixed.

b. Hourly.

c. Contingency based on amount of benefits.

d. Combination of a, b, or c.

2. Reasonableness.  

Pursuant to 38 C.F.R. 38 C.F.R. § 20.609(e) fees must be reasonable based on the following factors:

a. The complexity of the case.

b. The level of skill and competence required of the representative in giving the service.

c. The amount of time the representative spent on the case.

d. The results the representative achieved, including the amount of any benefits recovered.

e. The level of review to which the claim was taken and the level of the review at which the representative was retained.

f. Rates charged by other representatives for similar services.

g. Whether, and to what extent, the payment of fees is contingent upon the results achieved.

h. A fee of no more than 20% is presumably reasonable.



2. Conditions. (38 C.F.R. § 20.609(g)).  

Note that these rules may be modified in response to the new legislation as the Secretary promulgates new regulations.

a. Must be in writing.

b. Must be signed by claimant and attorney.

c. Must include veteran’s name.

d. Must include the C-file number.

e. Must include the terms regarding the amount to be paid.

4. Filing. 

For cases where the notice of disagreement is filed before June 20, 2007, you must file a copy of the agreement with the VA Regional Office and the Board of Veterans’ Appeals within 30 days of execution.  Filing requires that it be mailed to: Office of the Senior Deputy Vice Chairman (012), Board of Veterans’ Appeals, 810 Vermont Avenue, NW, Washington, DC 20420.  For cases where the notice of disagreement is filed after June 20, 2007, fee agreements are filed with the General Counsel’s Office (022D), U.S. Department of Veterans Affairs, 810 Vermont Ave., NW, Washington, DC  20420.

C. Certification. – New Regulations at 73 Fed.Reg. 29852 (May 22, 2008)

To charge a fee for representing a veteran in a claim for disability benefits the person must be an Attorney or Agent as defined by 38 U.S.C. § 5904(c)(1).  An added feature of the new law is the requirement that the Attorney or Agent be certified by the Secretary of the VA. Regulations regarding certification of attorneys to practice before the VA were promulgated on May 22, 2008.  

The requirements for certification as directed by 38 U.S.C. § 5904(a)(2) require at a basic level that the Attorney/Agent show (i) good moral character, (ii) competency to assist claimants, (iii) have the level of experience or training the Secretary shall require, (iv) certify to the Secretary that the individual has satisfied any qualifications and standards prescribed by the Secretary under this section.



D. Equal Access to Justice Act (EAJA). 

The Equal Access to Justice Act (EAJA) 28 U.S.C. § 2412 provides for fees for services performed before the Court of Appeals for Veterans Claims, the United States Court of Appeals for the Federal Circuit and potentially from the Supreme Court.  Recovery for EAJA fees requires a showing that the claimant was the prevailing party, the VA’s position was not substantially justified, and the claimant’s net worth is less than 2 million dollars.  It also requires an itemization of the fees and a statement that no special circumstances make an award unjust.

E. Collecting Fees.

1. You may collect your fees from the VA (withholding) or directly from the claimant (non-withholding).  

2. Withholding.  The VA will withhold your fee if your fee meets the fee requirements outlined in section C above and the fee is contingent on whether the claim is resolved in favor of the claimant, the total fee payable excluding expenses is not more than 20% of the total amount of past-due benefits awarded, and the award includes a cash payment from which the fee may be deducted.  CAVEAT:  You must notify the agency of original jurisdiction within 30 days of the execution of the agreement and the existence of the agreement specifically providing for withholding of and direct payment of fees from any past due benefits.  You must also provide the agency with a copy of the agreement.

3. Attorney Fee Coordinator.  Regardless of whether your fee
is withholding or non-withholding you should contact the local attorney fee coordinator.  Identify yourself and explain to the coordinator your specific fee situation.  

VIII. POTENTIAL PITFALLS 

A. Claims & Appeals.

1. Demand all documents in veteran’s possession regarding the claim.

2. Review documents for deadlines.

3. Always request a copy of the C-file.

4. Review the C-file.

B. Fees.

1. You must notify the agency of original jurisdiction within 30 days of the execution of the agreement and the existence of the agreement specifically providing for withholding of and direct payment of fees from any past due benefits.  You must also provide the agency a copy of the agreement.

2. Don’t wait for the VA to contact your after a decision about your fees.  Be proactive if you want paid in the shortest time possible.


IX. PSYCHOLOGICAL INJURIES – POST-TRAUMATIC STRESS DISORDER

38 C.F.R. § 3.304

(f) Post-traumatic stress disorder. Service connection for post-traumatic stress disorder requires medical evidence diagnosing the condition in accordance with §4.125(a) of this chapter; 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. Although service connection may be established based on other in-service stressors, the following provisions apply for specified in-service stressors as set forth below: 

(1) If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 

(2) If the evidence establishes that the veteran was a prisoner-of-war under the provisions of §3.1(y) of this part and the claimed stressor is related to that prisoner-of-war experience, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 

(3) If a post-traumatic stress disorder claim is based on in-service personal assault, evidence from sources other than the veteran’s service records may corroborate the veteran’s account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work per-formance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a post-traumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran’s service records or evidence of behavior changes may con-stitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred
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Amazing decision from the U.S. Court of Appeals for Veterans Claims that redefines entitlement to benefits where there is an undesirable discharges for willful and persistent misconduct.   "The Court also notes that, when the Board determined that the appellant's service was characterized by willful and persistent misconduct, it failed to explicitly link the conduct with a specific Board determination of ineligibility for veterans benefits in accordance with § 3.12(d)."  

"Although the Board found that the appellant was not insane during service, willfulness is separate and distinct from insanity as an element of 'willful and persistent misconduct' under § 3.12(d)(4),
and the Board made no explicit finding of willfulness in the appellant's case."
This case opens the door for veterans that received bad discharges because of PTSD to argue that PTSD symptoms were the reason for discharge.  
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