After your claim is denied in full or part, meaning that the VA has refused to give you everything that you’re asking for, you can ask that your claim be looked at again by a Decision Review Officer (DRO) instead of appealing directly to the Board of Veterans Appeals (BVA). A DRO will review your claim new and the DRO does not give any weight to the original examiner’s opinion. The legal term for this is de novo review. The DRO is a more experienced examiner at your local regional office.
Although it depends on the details of your case, you should consider having a DRO look at your case. A DRO cannot rescind the benefits that the original examiner awarded you unless the original examiner committed Clear and Unmistakable Error. A DRO is also more likely to make a decision much faster than an appeal to the BVA. On the other hand, if your case revolves around a legal issue, the BVA, where an attorney will review your claim, may be the best place to go.
The VA does have a duty to assist you with your claim.
You have submitted a claim and you don’t quite have all the evidence that you need to win your claim. Who can help? Congress has required the VA to help you by enacting a law establishing a “duty to assist.” The key part of the law says: “[t]he Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit under a law administered by the Secretary.” 38 U.S.C. 5103A.
The VA, however, is not required to help you if VA believes that the requested aid has no reasonable possibility of proving your claim. The VA can also wait to prove you assistance until you provide them certain “essential information” that may be missing from your application.
There are a few common things that the VA will do to help you prove your claim. The VA will obtain records, such as medical records, from public and private facilities. They will obtain your service medical records (SMRs) and social security disability records (SSDI). This duty is limited however to records that may actually support, or refute, your claim. The VA is not obligated to obtain records that have nothing to do with your submitted claim.
The VA will also obtain medical examinations or opinions for you. This duty will trigger essentially when there is a a threshold of information supporting your claim but not enough information where the VA could act upon it and award you your benefits.
If you have a pending claim and need some help accumulating information, all you have to do is ASK!
Am I Eligible for VA Benefits?
If you are planning on submitting a claim for VA compensation benefits you have to meet a few requirements.
To even submit a claim, you have to be a veteran, a dependent of a veteran, or a survivor of a veteran. A veteran is “a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.” The military includes the Army, Navy, Marine Corps, Air Force, and Coast Guard including their associated service academies. Interestingly, a few other public servants are entitled to claim VA benefits. If you served in the Public Health Service, National Oceanic and Atmospheric Administration, Environmental Science Services Administration.
There are some benefits that require certain length of service requirements. These benefits include health care and non-service connected pensions. There was no minimum service requirement before September 8, 1980, with a few exceptions. If you enlisted after that date, you may have to have completed twenty four months of active service. There are a few exceptions which basically pertain to being discharged due to an approved reason, such as a service-connected disability.
This is only the first step in submitting a claim for VA compensation benefits. You actually receive compensation, you will have to show that you have a current service-connected disability.
With all the VA shenanigans going on, we rested easy knowing that the dentists were above scrutiny. They’d have to be because we all know that people love dentists just as much as they love their undertaker or lawyer. Well folks, we were wrong.
It looks like KHON2 out of Honolulu is breaking a major story coming out of Spark M. Matsunaga VA Medical Center. According to the story, the U.S. Department of Veterans Affairs is stating that 20 patients may have been exposed to deadly viruses such as Hepatitis. This occurred because dental equipment was not properly sterilized. Apparently, the VA Medical Center sends directly equipment to the adjacent Army Medical Center which then cleans the equipment.
The VA has attempted to downplay the situation by claiming that the incident was only the result of missing a single load of dental equipment.
The VA’s response has been to issue a formal apology and are offering free Hep-B, Hep-C, and HIV testing for all patients at their facility. I really question whether this is enough or appropriate.
You know that cleaning your equipment, such as your rifle, is paramount. If your equipment isn’t clean then it doesn’t work. Here, the VA didn’t bother to clean their equipment, have possibly exposed people to deadly diseases, and all they can say is I’m sorry and how about a Hep and HIV screen? Disgraceful. I’ll refer the VA back to my very first blog comment here at the Veterans Law Blog: it’s time for a special prosecutor.
Service Connection for Chronic Conditions
Last week we posted about Direct Service Connection. One way that you can establish, or prove, service connection is by proving that you suffer from a chronic condition caused by your military service. The VA regulation states that a chronic disease manifested in service, or within certain presumptive periods – which we’ll cover on a separate posting – and subsequent manifestations are service connected unless clearly attributable to other causes. 38 C.F.R. 3.303(b).
There are a few really important things to take away from this part of the regulation. First, you must show that the condition manifested itself during service or within the presumptive periods. This means that if your condition didn’t manifest itself until much later, you will have a much more difficult time proving service connection by chronic condition, or chronicity as the lawyers call it. That doesn’t mean your case is a loser, not at all. You’ll just need to establish it other ways or have someone assist you with the presentation of your claim.
Much of the time, you will still need to have medical evidence to support your claim. You’ll need to prove requirements similar to a direct service connection cases.
With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.
What happens if your VA doctor is a quack and injures you while you are getting treatment at a VA medical center?
Fortunately you have two options to take advantage of if you are injured while undergoing treatment at a VA medical center. The first option is called a “1151 Claim.” The “1151” just refers to the part of the United States Code that permits you to make this type of claim. To win, you must show:
- That your injury (or the death) was proximately caused by “carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault” OR
- By an “event not reasonably foreseeable” in VA’s furnishing of medical care.
This basically means that you were hurt because your doctor made a mistake and you have some new or worsened injury because of that mistake. The law gets a little complicated here; the doctor has to have acted differently than a reasonable doctor would have acted under the same or similar circumstances. In other words if any doctor would have done the same thing that your doctor did, even if you were hurt, you probably aren’t going to win your case.
The second option is a claim under the Federal Tort Claims Act (FTCA). This is more or less your typical medical malpractice case against the doctor and hospital. In this type of claim, you will need to prove that your injury was caused by a VA employee’s “negligent or wrongful act or omission … while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable … in accordance with the law of the place where the act or omission occurred.”
Finally, it is important to mention that you don’t have to pick between the two options. You can pursue both a 1151 and FTCA claim. If you are thinking about presenting either type of claim, you’ll definitely want to have an attorney help you with your claim. Good luck!
You ask what is clear and unmistakable error (CUE)? It’s just a decision by the VA that is plain…
That’s true but the legal definition is: “Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied.” 38 C.F.R. 20.1403(a) (2012).
Ok, let’s be honest, that’s not very clear at all. Here’s how it breaks down: CUE are errors in your claim that are so obvious that anyone paying attention to your claim would have notice them had they taken a couple extra minutes to consider it. CUE cases are hard because if it is not absolutely clear that an error was committed, the VA will deny your CUE claim. To win on a CUE case, the error has to make a difference in the outcome of your case. So, if the VA made a mistake on one component of your claim but that mistake did not affect the final outcome of your claim, the VA will consider it to be “harmless error.”
Many claims, no matter how old, can be disputed with a CUE case. There are a few limitations that basically have to do with appeals to the U.S. Court of Appeals for Veterans Claims or the U.S. Court of Appeals for the Federal Circuit but we can talk about that another day. Your CUE case can be started by filing a motion to:
Director, Management and Administration (01E)
Board of Veterans’ Appeals
810 Vermont Avenue N.W.
Washington, D.C. 20420
In a future posting, we will talk about why you should consider a CUE motion how that can mean big bucks for you.
To qualify for many veterans compensation benefits, a veteran must establish that their injury or condition was caused by their military service. The VA regulations explains that service connection, generally, “basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.” 38 C.F.R. 3.03(a). In other words, if your military service caused an injury or medical condition, you can apply for compensation. Also, if your military service aggravated, e.g. made worse, some injury or medical condition that you had before you entered the service, you can apply for compensation for that also.
Direct service connection means that your injury, medical condition, or aggravation was directly caused by your military service. Three things need to be proven to establish direct service connection:
- Medical evidence must show that you have a current disability;
- The disability must be incurred in-service; and
- Medical evidence must link your current disability to the in-service event.
If these three things are proven, you have a shot at making a successful claim for VA benefits.
Appealing a RO decision is pretty easy.
The VA does not require that you use a specific form to appeal your unfavorable decision. Before I go any further, I should point out that an unfavorable decision is basically if the VA does not give you everything that you requested. This could be requesting service connection or a particular rating or TDIU.
So back to our discussion, the VA does provide a form, which can be accessed here, which is called a Notice of Disagreement (NOD). A NOD is generally due within 1 year from the date that the VA mailed the notification of the decision to you. For certain contested claims including claims of apportionment, the time limit is 60 days from the date that VA mailed you notification of its decision. Your NOD should state all of the claims which you disagree with the VA’s decision.
The NOD should be mailed to the RO that issued your decision.
Many people have asked me whether they should appeal their unfavorable decision. My answer is clear: ABSOLUTELY! Appeal your case if you are not completely happy with the decision that the VA made.
Good hunting, my friends.
“To care for him who shall have borne the battle and for his widow, and his orphan.”
March 4, 1865
On June 23, 2014, the Office of Special Counsel published a notice to the President outlining the serious, dangerous, and illegal patient care conditions that our veterans have been subjected. A copy of the letter is here.
We learned today that the Department of Veterans Affairs used these clever tricks to conceal the true status of patient care of various VA Medical Centers:
- Jackson (MI) VA Medical Center developed “ghost clinics” to hide true wait times from overseers. The scheme was that the VA would scheduled for appointments in clinics with no assigned provider, making the veteran wait for unreasonable lengths of time, and then hoping that the veteran gets frustrated and just leaves the facility.
- Failing to examine a veteran with a 100% service-connected psychiatric condition for a period of over seven years.
- Firing patient care schedulers who refused to participate in the VA’s scheme.
- Failing to sterilize medical equipment at a Buffalo center.
- Failing to have life saving equipment available when needed.
- Failing to properly credential surgeons.
These conditions are deplorable and do not reflect President Lincoln’s dream that we should care for those who have borne the battle and his widow, and his orphan. With allegations like these, the VA cannot be trusted to examine it’s own affairs; in fact, they have done so previously and simply claimed that no adverse affects were noted.
The solution here is simple: a special prosecutor should be appointed. This problem should be investigated until all those who perpetrate these crimes against out veterans have been ousted. The likelihood of that happening is essentially zero so you must protect yourselves and your loved ones. Do not accept substandard care. Do not accept delay. Demand that you be heard and demand that you receive the medical care that you earned.
This post was not how I intended on making this site’s debut but the story shocked me as I listened to the evening news and I thought further scrutiny needed to be brought to this issue. Fear not, most our of discussions with be on the substance of presenting VA claims.