Chapter 7: The VA Claims Process

Transcription

1 Chapter 7: The VA Claims Process The VA claims process is often complicated and frustrating. To confuse matters further, veterans law is not static. Statutes and regulations are amended, and decisions made by the U.S. Court of Appeals for Veterans Claims (CAVC) sometimes force the VA to change the way it interprets the law. Therefore, before filing a claim for benefits, claimants should obtain a qualified advocate to assist in the preparation and presentation of the claim. Applying for Benefits If a veteran or a veteran s family member is interested in applying for VA benefits, he or she should do so as soon as possible. The first step is to find and consult a veterans advocate, and then to send either the completed, appropriate VA claim form or an Intent to File a Claim form to the local VA regional office (RO). (These forms are discussed in Chapters 3 and 6). The form should be dated and signed by the applicant or accredited representative. As long as the claimant does not submit a fully developed claim (FDC) (discussed later in this chapter), the claimant does not need to immediately gather all of the evidence necessary to support the claim. If the claim is granted, benefits will be paid back to the date on which the VA received the Intent to File a Claim, as long as the completed claim form is submitted within one year of the date the claimant filed the Intent to File a Claim. If the claimant initiates the claim by filing a completed claim form, rather than an Intent to File a Claim, benefits will be paid from the date the VA received the completed claim form. The date from which benefits are paid is called the effective date. A claimant for VA benefits should always consult his or her advocate before contacting the VA. In almost every instance, a claimant should have the advocate review all correspondence to the VA. Also, it is the practice of some VA regional offices to telephone the claimant, without involving the representative, when seeking information relevant to the claim. If this happens, the veteran should tell the VA that all telephone contact should be with the advocate. An advocate who learns that the VA has called his or her clients directly should tell the clients not to answer any questions but to have the VA call the advocate. Once a claim is filed with the RO, the VA will assign a claim number, or Cnumber, to the case and will start keeping a file on the case. Veterans and their representatives should use this C-number on all future correspondence and communication with the VA.

2 Completing Form Veterans should complete the application form with the help of their representative, and should always be as accurate as possible. The formal application should identify the particular benefit the veteran is seeking. If veterans are unsure about some of the details or dates involved in completing the application, they should know that they have the right to review their military service records (and other VA records) before completing the application. The VA also offers veterans the option to file certain claims for benefits electronically on-line. The program, called Veterans On-line Application (VONAPP) also provides detailed instructions on how to complete an application and file it electronically. Although this provides claimants the opportunity to quickly and formally apply for certain VA benefits such as compensation and pension, it is always preferable for claimants to receive assistance from advocates in preparing the formal claim. It is advised that advocates and claimants together review the veteran s service records and post-service records and only then complete the claim form. Claimants seeking new or increased benefits who have already had a claim for benefits adjudicated by the VA can file their subsequent claim on a VA Form b, Veteran s Supplemental Claim for Compensation. Fully Developed Claims (FDC) The FDC process is designed to adjudicate claims faster within 90 days for those claims which meet the eligibility criteria. An August 2012 statutory amendment made it possible to receive an effective date up to 1 year prior to the filing of an original claim in the FDC program, effective August Claims decided prior to that date may be eligible for an earlier effective date through filing of a Notice of Disagreement (NOD). In order to submit a compensation claim under the FDC program, a claimant must submit a VA Form EZ. When a claimant submits the VA Form EZ they should submit all the evidence necessary to establish entitlement to the compensation claim, such as medical evidence (including private medical records) and lay evidence. In order to have been eligible for a retroactive effective date, the claim must have been received by the VA from August 6, 2013, through August 5, 2015, and must have met the following requirements:

3 The claim must have been for compensation no other types of claims are eligible The claim must have been original. An original claim is the initial complete claim filed by a Veteran for disability compensation. The claim must have been received on a VA Form EZ or online through ebenefits. The Veteran must have separated from his/her last period of active duty service more than one year ago, and The claim must have been received from August 6, 2013, through August 5, of: The effective date for claims that met these criteria is calculated as the earlier a) the date up to one year prior to receipt of the complete FDC, if the facts support such an effective date as explained in the paragraph below, or b) the date of receipt of an informal claim for which a formal (complete) FDC was subsequently received. According to VA Fast Letter 13-17, it is important to note that the effective date may be up to one year prior to submission of the formal (complete) FDC, depending on evidence of when the disability first manifested. If evidence of record supports less than one year of disability, process the award assigning the effective date as the date the evidence shows the evaluation is warranted. See VA Fast Letter 13-17(August 2, 2013). Exclusions from the FDC Program There are several ways in which a claimant s compensation claim will be excluded from the FDC program: The claimant can opt out of having their compensation claim processed in the FDC program by checking item 21 of the VA form EZ The claimant has an appeal pending at the time of the receipt of the EZ form and the claims folder is not located at the home RO. The claim requires a character of discharge determination

4 The claim requires development for records in the custody of the Veteran s Guard/Reserve unit(s), or further evidence from the claimant or an identified private medical provider The claim requires any development beyond developing for: o Federal records in the custody of the Federal government (excluding the veteran s Guard or Reserve units) o Claimant-identified Federal treatment records such as VA medical center (VAMC) treatment records o A VA examination/dbq If the claimant fails to report for an examination (unless the fault is solely VA s), files a supplemental claim, sends VA additional evidence, or files an NOD on any claim after VA receives the FDC, then the compensation claim will be removed from the FDC program, VA s Duty to Notify A law passed in 2000 requires the VA to inform every VA claimant of information and medical or lay evidence necessary to win the benefit claimed. The VA must also explain to the claimant what evidence the claimant must obtain and what evidence the VA will attempt to obtain. Assume, for example, a veteran is trying to convince the VA that he injured his knee in service. The duty to notify may mean that VA must tell the veteran that if during service he told a family member that he injured his knee, a statement from the family member regarding this conversation would tend to substantiate the one element of the veteran s claim. Obtaining Evidence Once the claim has been filed, then the veteran and representative need to get to work on obtaining evidence to support the claim. Although the VA will attempt to obtain the veteran s service medical records and relevant federal and private medical records, a veteran should also work with his or her representative to obtain necessary medical records and reports to support a claim for service connection for a particular disability. The veteran may need to obtain a favorable opinion from a private physician (usually at the veteran s own expense) to support the claim for benefits. The VA will provide a medical opinion from a physician if it is needed to decide the claim. However, it is preferable in most cases for the veteran to obtain an opinion from a private physician if possible. Other types of evidence that a claimant can help gather include military service records and sworn statements from friends, family members, or witnesses that might help prove the

5 claim. Taking the time to obtain good evidence is crucial--submitting good evidence is the key to winning VA benefits. Veterans can obtain one free copy of their military personnel records by writing to the National Personnel Records Center (NPRC) using a Standard Form 180, Request Pertaining to Military Records. Some military records were destroyed in a fire at the NPRC in If a veteran receives a reply from the NPRC that his or her records were destroyed in that fire, the VA will usually try to reconstruct the records. The National Archives and Records Administration in Washington, D.C., may also be able to help reconstruct certain records, such as military hospital records or information on particular military units. The VA's Duty to Assist Once the RO receives a claim it determines is reasonably possible, then the VA must help the veteran obtain evidence to support the claim. However, veterans and representatives should never rely solely on the VA to develop evidence. Once the evidence is obtained, the veteran's representative should organize and screen the evidence (submitting only what is favorable to the claim, unless unfavorable or neutral information is specifically requested by the VA), and present an argument to the VA that explains why the claim should be granted. VA Decision Letters Once the VA decides a claim, a letter is sent to the veteran and his or her representative to tell them of the decision. The veteran can, within one year from the date of the VA letter, appeal the RO's decision. The first step in filing an appeal is to submit a VA Form , Notice of Disagreement to the RO. In the past, veterans could submit a notice of disagreement (NOD) by submitting a letter or other written communication stating that the veteran disagreed with the VA's decision and was seeking appellate review. As of March 24, 2015, however, use of the standardized NOD, VA Form , is required is almost all situations. The NOD should include the reasons why the veteran disagrees with the RO decision. If the decision covered more than one issue, the veteran must identify which issue or issues he or she plans to appeal. The VA responds to a veteran's NOD by sending a statement of the case (SOC), which summarizes the evidence considered as well as the relevant VA law and explains why it reached the decision it did. Enclosed with the SOC is a VA Form9, known as the substantive appeal.

6 De Novo Review A claimant who files an NOD may obtain de novo review before deciding to continue with the appeal process. This is an optional, additional procedure conducted between the filing of the NOD and VA s issuance of the statement of the case. If de novo review is requested the appeal process is suspended while de novo review takes place. A claimant may request de novo review in his or her NOD. Unless the claimant requests this review in the NOD, the VA will mail notice of the right to review when it receives the NOD. The claimant or advocate must request de novo review within 60 days after VA mails its notice. De novo review is conducted by a decision review officer (DRO) or a hearing officer who did not participate in the initial decision being reviewed. The reviewer may conduct an informal conference or a hearing. The reviewer has the power to uphold, revise, or reverse the RO decision but not in a manner adverse to the claimant. Unless the claimant withdraws his or her NOD as a result of the DRO process, the traditional appellate process should proceed as usual after the DRO decision is issued. Hearings at the RO Before or after completing the substantive appeal, which is a formal appeal to the Board of Veterans' Appeals (BVA), veterans may have a personal hearing at the RO in front of a decision review officer (DRO). A claimant can have a VA hearing at any time on any issue. Most claimants, however, wait until after they file an NOD to ask for a hearing. Generally, it is a good idea to have a hearing on a veteran s claim. A personal hearing allows the veteran to meet face to face with a VA hearing officer and discuss why the claim should be granted. For example, it is often very helpful for the hearing officer actually to see the veteran and judge the level of his or her disability. For example, if the veteran has a bad knee condition or skin condition, then the hearing officer can actually watch the veteran walk or see the skin condition, and can ask questions about how the veteran copes with the disability every day. Before the hearing, the veteran and his or her representative should organize the arguments that support the claim as well as the favorable evidence. The representative and the veteran should go over the veteran's testimony and prepare for the questions that the representative will ask at the hearing, as well as anticipate questions the VA hearing officer will ask during the hearing. If a veteran is

7 bringing witnesses along to testify at the hearing (such as a spouse, family member, or medical doctor), they should also be adequately prepared. Hearings at the RO are non-adversarial in nature--the hearing officer or DRO is there to gather information about the claim and is not supposed to crossexamine the veteran or any witnesses presented. The hearing officer or DRO can issue a new decision and can grant all the benefits sought by the veteran. If the decision is unfavorable, then the veteran can still appeal to the Board of Veterans Appeals. The VA s New Initiative: Provisional Decisions As a possible solution to reduce the back log, the VA has implemented an initiative to expedite compensation claim decisions for Veterans who have waited for an extended period of time. Beginning April 19, 2013, VA rating officers will make provisional decisions on the oldest claims in the inventory. The goal is to allow Veterans to begin collecting compensation benefits more quickly. The decision will be based on all evidence VA has received to date and during the time the claim has been pending, even if there is certain outstanding evidence that VA has requested but not yet received. If needed to make a decision, the VA will request an expedited exam. After the provisional rating decision has been issued, veterans have one year to submit additional evidence for consideration. If new information is not received within a year, the VBA will inform the veteran that their rating decision is final and will provide information on the standard appeals process. VA has not yet issued any guidance regarding how it will respond at the end of the one year period following a provisional decision, if requested evidence continues to remain outstanding at that time. Substantive Appeal A substantive appeal (Form 9) is a formal appeal to the Board of Veterans' Appeals. The veteran or representative should specifically explain why the RO's decision was wrong and why he or she should be awarded a particular benefit. On the substantive appeal form, the veteran should also indicate whether he or she would like a personal hearing in front of the BVA on the appeal. The veteran has either 60 days from the date of the SOC, or one year from the date of the RO decision, to appeal the denial (whichever is later). Again, the VA must receive a veteran's substantive appeal by this date. If the deadline is missed, the decision becomes final and the veteran may no longer appeal it.

8 The veteran can always reopen the claim at the RO, as long as he or she has new evidence that is material to the claim (evidence that was not presented to the VA before and is likely to change the outcome of the case). However, if the benefits are granted, then the effective date of the award will be the date on which the reopened claim was filed, not the date of the original claim. Appealing to the BVA Once the substantive appeal is filed, the case is assigned a docket number at the Board. (The Board's docket is the record of all the appeals that are waiting for the Board's review, listed in the order in which the Board received a copy of the substantive appeal in a case.) Because cases at the Board are considered in docket number order, the claims file will remain at the RO until the BVA is nearly ready to consider the case. At that point the BVA asks the RO to forward the veteran's claims file to the Board for appellate review. There is typically a large backlog of claims at the BVA; a veteran may have to wait a long time before his or her case is reviewed and decided by the Board. The average length of time from the docketing of a substantive appeal at the Board to a BVA decision is about two years. If a veteran is experiencing severe financial hardship, such as an impending bankruptcy or foreclosure, or is terminally ill, he or she can ask the Board to move the case up on the docket. Hearings at the Board In addition to an RO hearing, a claimant is entitled to a hearing before a member of the BVA. If a veteran decides to have a personal hearing, he or she must choose between a personal hearing at the BVA in Washington, D.C. (the veteran must pay travel, lodging, etc.) a hearing held at the local RO whenever a BVA member can travel from Washington to hear the case, and a video hearing. A video hearing is a hearing conducted between the claimant at the local VA Regional Office and a Board member in Washington DC, through a television satellite link. If a veteran decides not to have an actual hearing, the veteran's representative can submit a written argument for the Board's consideration. This is known as an informal hearing. The advantage to a hearing is that the claimant can submit new evidence and present witnesses.

9 The BVA Can Develop a Claim and Notify Claimants The BVA may obtain new evidence, clarify evidence, cure a procedural defect, or perform other actions necessary for a decision. If the Board intends to consider new evidence that it has developed it must first obtain the claimant s waiver of RO consideration. For all claims with a substantive appeal (VA Form 9) filed on or after February 2, 2013, any additional new evidence obtained or submitted after the appeal will be subject to initial review by the BVA, unless the appellant specifically request in writing, initial review by the Agency of Original Jursidiction (AOJ). In other words, for substantive appeals file dafter February 2, 2013, BVA does not need to obtain a claimant s waiver of RO consideration for new evidence, and the veteran must specifically request review by the RO. The old rule will still apply to substantive appeals that were filed before February 2, If the Board obtains a medical opinion, develops additional evidence, or intends to rely on a law not previously relied on, and the claimant waives RO consideration where necessary, the claimant is given 60 days to respond or submit additional evidence or argument. If proper notice of the evidence needed to prove the claim was not provided to the claimant, the Board may notify a claimant of the needed evidence. BVA Remands Veterans should be aware that the Board can send a case back to the VA Appeals Management Center (AMC) or the VA regional office for any additional development. The Board might decide to remand the case for a new medical examination, or to obtain missing records that are relevant to the claim. A remand is neither a grant nor a denial--the BVA has not made a final decision on the claim yet. After a BVA Denial A Board of Veterans Appeals decision to grant or deny an appeal, in whole or in part, is considered a final decision--but the BVA s decision can be challenged. The following options are available to a claimant who is dissatisfied with a BVA decision: Asking the BVA to reconsider its decision; Reopening the claim at the RO with new and material evidence; Appealing to the U.S. Court of Appeals for Veterans Claims (CAVC); Appealing the CAVC and at the same time attempting to reopen the claims

10 with new and material evidence; or Claiming that the BVA decision (or an RO decision) contains a clear and unmistakable error (CUE); Reconsideration At any time after a BVA decision, the claimant or appellant (the appealing party) can request that the BVA reconsider its decision by filing what is called a motion for reconsideration. A motion for reconsideration is a written document that includes: The name of the appellant; The claim number (C-number); The date of the BVA decision(s) to be reconsidered; A description of the error (an obvious error, or an error of fact or law) that is the basis for requesting reconsideration; and The specific issue or issues to which the motion applies. The BVA may grant a motion for reconsideration: If there was an obvious error of fact or law; Upon the discovery of new and material evidence in the form of military records (including an officially corrected service department record); or On the accusation, usually by the VA, that the BVA was materially influenced by false or fraudulent evidence when it awarded benefits. A motion for reconsideration must be filed at the BVA s Washington address. The chairman of the BVA will review the motion and notify the claimant (and his or her representative) that the motion was either granted or denied. If the motion is allowed, the claimant has 60 days from the date on which the notification letter was mailed to present additional arguments or evidence. If the motion is granted, the earlier BVA decision is vacated. That means the BVA will act as though that decision never existed, and will review the appeal as if for the first time. New and Material Evidence Any final denial of VA benefits may be reopened if the claimant submits new and material evidence. New evidence is evidence not previously considered by the VA and that is neither cumulative nor redundant. Material evidence relates to an unestablished fact necessary to prove the claim, and raises a reasonable possibility that, with all the other evidence of record, it would substantiate the claim.

11 If the claim is reopened, the VA must consider all the evidence in the file (new and old) and make a decision without giving any deference to how the VA previously weighed or evaluated the old evidence. There is no limit to the number of times a claimant may attempt to reopen a claim with new and material evidence. If the claimant is granted benefits based on a reopened claim, the effective date will usually be the date of the reopened claim, not the date of the first claim the claimant filed for this benefit. Appeal to CAVC Final BVA decisions, in cases where the notice of disagreement (NOD) was filed on or after November 18, 1988, may be appealed to the CAVC. The notice of appeal must be mailed (postmarked) within 120 days of the date on which the BVA mailed the decision to the appellant and the appellant's representative. Appeal to CAVC and Reopening Claimants can appeal to the CAVC and simultaneously attempt to reopen their claims at the RO with new and material evidence at the same time. With this tactic, the claimant protects his or her chance to win at the Court and establishes the earliest possible effective date for benefits if the CAVC turns the appeal down but the new and material evidence convinces the RO to award benefits. CUE Claim CUE claims can be directed against an RO or BVA decision. A claim based on clear and unmistakable error must have certain characteristics. The claimant must show that the RO or BVA committed an error, and that, but for that error, the VA would have awarded benefits. The claim must be identified as a claim for CUE, and it must clearly identify the error. There is no time limit for a motion for revision of a final BVA decision based on CUE--such a request may be made at any time after the BVA decision is issued, no matter how long ago the RO or BVA decision was issued. Failure to obtain evidence is not clear and unmistakable error. If a CUE claim does succeed, benefits will be paid from the date of the original decision. In some cases that could mean 30 or 40 years worth of retroactive benefits. However, these claims are relatively difficult to prove and the VA seems reluctant to grant them. A BVA decision on a CUE claim can be appealed to the CAVC.

12 Other Ways to Obtain Benefits In a limited number of cases, methods other than reconsideration, reopening, or appeal may enable a claimant to obtain benefits even if the claim has been finally denied. Chief among these are correcting official records; applying for equitable relief; and administrative review or administrative appeal. Correcting Official Records Veterans can file an application for correction of military records with the appropriate service department correction board. These boards have the power to amend military personnel and medical records to correct all errors or injustices. These corrected records can also be used as new and material evidence with which to reopen previously denied VA claims. Equitable Relief The Secretary of Veterans Affairs is authorized to provide monetary and other relief in some circumstances. Equitable relief can be granted if benefits have not been paid because of administrative error on the part of the federal government or any of its employees. Equitable relief means that the VA chooses to do something that is fair but not required. Also, if the claimant has relied on an erroneous VA grant of eligibility for or entitlement to benefits, without knowing that the VA determination was wrong, the Secretary is authorized to compensate the claimant for any losses incurred. To request equitable relief, the claimant can write to the Secretary or to the VA's Office of General Counsel. Administrative Appeals Certain VA officials can appeal an RO s grant or denial of benefits to the BVA. Such appeals are very rare. The claimant affected by the appeal must be notified of the official s action and has 60 days to join in an appeal of a denial, if he or she wishes to do so.

13 Administrative Reviews In certain instances, RO decisions can be referred to the VA s Central Office for administrative review. These requests are made sometimes when an advocate feels the RO is not following VA policy. A request for administrative review can be made by a veteran's service officer, attorney, or other veterans advocate. Requests for administrative review by a service officer must be submitted through the national office of the service officer's organization. All other requests should be sent to the Compensation Service in the VA's Central Office.