Part Two: The Long and Winding Road – the VA Disability Process.

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This is a continuation of an three part article on the VA Appeal Process

The following explanation of the VA Claims process is courtesy of vetadvocates.com AND Lawyers4Veterans.com (links provided within the article). Frankly there is nothing sinister or secret about this long drawn out process, readers can get the same explanation or something quite close to it from the VA or those VSOs closely tied to the VA.

The intent of these growing numbers of veterans’ legal advocacy websites is to ensure our youngest generation of Veterans knows and understands we have legal rights to protect our Veterans’ Rights. There is a move afoot to ensure we understand this process. Questioning the fairness or motivation behind this very old bureaucratic process is something we cannot leave up to any organizations that are too close to the VA upper management system, the claims system, or even Congress.

     

We surly cannot leave it up to Veterans groups that prefer not to legally confront the VA. One does not get a Congressional charter without being non-confrontational with the VA system. Note that despite efforts over the years to streamline this process and make professional legal advice to Veterans affordable and accessible has traditionally come from either the Senate or other committees in the House except the Veterans Affairs Committees.

In every scenario it is usually opposition and resistance in both the House and Senate Veterans Affairs Committees that kills or waters down Vet access to a good lawyer. One needs only understand this key and which Veterans groups really have access to these committees to figure out how to try breaking this stranglehold over the VA system that exists on the long and winding road.

Below is what the transformation of a VETERAN entitlement earned program to a need based welfare system leads to. In fact, this is what most professional attorneys outside the VA system will tell you as well as our best and brightest VSO National Service Officers will admit. Either way the process is still designed to discourage Veterans or wait us out for a bureaucratic death. For a process that some VSO still oppose as not needing professional legal protections, note how many legal terms are used!!!

http://www.vetadvocates.com/claims_proc.htm

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Robert L. Hanafin
Major, U.S. Air Force-Retired
VT Staff Writer
Editorial Board Member


VA DISABILITY PROCESS OVERVIEW

windingroadClaimant’s Burden: The United States Congress created a totally and completely unique veterans’ benefits system. Under the veterans’ benefits system a veteran, a veteran’s dependents or a veteran’s survivors are required only to submit a "plausible claim" for an entitlement to VA benefits. Once a plausible claim has been submitted, the burden to fully and completely develop evidence to support that claim is by federal law upon the Department of Veterans Affairs.

Entitlement to a Decision: A claim must be in writing. A claim may be submitted at any one of 58 Regional Offices of the Department of Veterans Affairs. Every state in the United States has at least one Regional Office. There are also Regional Offices in Puerto Rico and the Philippines. There is also an office in Washington, D.C. for those individuals who live outside of the United States. Once a claim has been submitted to a Regional Office, the Regional Office is required to render a decision. The decision should only be made after a fully and sympathetically developed consideration of the evidence. The veteran will receive a written notice of the decision of the Regional Office. This notification of action will only inform the veteran that the claim has been granted or denied.

(Note: In Major Hanafin’s scenario the VA form sent in requesting reimbursement for out of pocket expenses went to the Regional Office, center that handles adjudication of reimbursement request, and only to the local VA Hospital as a courtesy. The form was never adjudicated by either the Regional Office or VA center that adjudicates reimbursement decisions. The request was stopped (or trashed) by the Director of the VA Medical Center without any decision granting or denial from the VA Regional Office. What I’ve learned and where I’m going with this is that the burden is on us VETERANS to keep the VA train on track all the way along the long and winding road. This more than anything requires professional, affordable legal counsel and advice. I’m extremely reluctant to depend on any VSO service officer who knows a little more than I do to look out for my interests. Frankly, I would have more confidence in an attorney that specialized in VA rules and regulations. Anyway, that’s what I can afford to do, and that’s not right or fair to us VETERANS as a class or group. Make no bones about it WE are part of a Warrior Class in a nation that is not a classless society).

Notice of Disagreement Requirement: In the event that a veteran desires to appeal the denial of benefits, a Notice of Disagreement is required to be submitted by the veteran to the Regional Office. There is no required form for a Notice of Disagreement. The Notice of Disagreement must simply express disagreement with the denial of benefits. Upon receipt of a Notice of Disagreement the Regional Office must prepare a Statement of Case.

(Note: In Major Hanafin’s situation an official Notice of Disagreement was filed once I filed a complaint with the VA Inspector General and my letter was accepted by the Office of the Secretary of Veterans Affairs. However, what I’m scratching my head about is that the long and winding road leads to the Director of my local VA Medical Center NOT the VA Regional Office in Columbus, OH. (HUM?) Anyway, I’ll adapt, but prefer it be handled at the Regional Office as dictated by VA regulations. That’s another story).

Statement of the Case: A Statement of Case is required by law to explain to the veteran the reason for the denial of benefits. The Statement of Case should also provide notice to the veteran of the pertinent or controlling statutes and/or regulations relied upon by the Agency to support the decision to deny benefits. The Statement of Case will inform the veteran that in order to perfect an appeal of a denial of benefits, the veteran must execute and submit a VA Form 9. This Form will be included in the mailing from the Regional Office with the Statement of Case.

(Note: Major Hanafin is about to receive one of these shortly, this should be interesting if not frustrating).

Perfecting the Appeal: In order to perfect an appeal for review of a denial of benefits by a Regional Office, the veteran must not only file a Notice of Disagreement, but must timely file a VA Form 9. This is a two-step appeal process; completing the first step and omitting the second step will not result in a perfected appeal. The VA Form 9 must be filed either within 60 days of the receipt of the Statement of Case, or within one year of the Notice of Action by the Regional Office denying the claim, whichever is later. (Note: OK, the rest of this will be new to me, so I will have no comment until I personally experience this part of the long and winding road. However, I’ll keep our readers informed. Major Hanafin)

pict12_400Actions by the Board of Veterans’ Appeals: Once a veteran has perfected an appeal, the claims folder is transferred to the Board of Veterans’ Appeals in Washington, D.C. The BVA is the final administrative process before going to Court. However, here is where the most delay, and then delay again is highly possible. How? The Board may take anyone of four different actions in a veteran’s appeal. (1) The Board may affirm the decision of the Regional Office. This would be an adverse decision (denial) to the veteran and would allow the veteran to appeal to the Court. (2) The Board may reverse a decision of the Regional Office (approve) and grant the benefits sought by the veteran. In this circumstance, the decision would be favorable and there would be no basis for an appeal to Court. (3) The third option is for the Board to remand the case (simply put delay the case) for further development to the Agency of Original Jurisdiction, the Regional Office. (Or in Major Hanafin’s situation the Director of the VAMC who has already made up his/her mind to trash the request to begin with – DAH!) A remand is not an adverse decision. A remand merely continues (delays) the administrative appeal by returning a case to the Agency for further proceedings (this is the key to the institutionalized deny-delay-until Veteran die concept)

Once the Regional Office receives a remand, the Regional Office is required to complete the instructions or directions for further development provided by the Board. The length of time this process takes is dependent on the nature of the remand instructions. (Keep in mind that WE the Veteran have the burden of ensuring the VA train stays on the long and winding road!) In the event that the Regional Office confirms the prior denial, the Regional Office will issue a Supplemental Statement of Case. Following the receipt of a Supplemental Statement of Case, the veteran’s claims folder should be returned to the Board to complete appellate review. Upon return to the Board, the Board still has all four options available as though this was an original appeal. (That our readers is a very scary proposition that in no way looks like giving us VETERANS the benefit of a doubt. Major Hanafin) AND if you thought that was confusing enough, (4) the final option for the Board is what is called a referral. A case is referred back to the Agency when the Board feels that an issue or a claim which should have been developed was not, and the Board directs the Regional Office to decide that issue and give the veteran notice of that decision. (Here we go again – deny-delay-deny-until we die). In this circumstance, the veteran is required to file a Notice of Disagreement (again) with such ratings action. Another circumstance in which a referral would be appropriate is when the Board failed to include in the Statement of Case a claim or issue raised by the veteran in the Notice of Disagreement. In such a situation, a referral back to the Agency of Original Jurisdiction would be issued directing the Regional Office to issue a Statement of Case on the omitted claim or issue. (Readers a blind man or woman can see where the VA system has the opportunity to deny-delay-delay again, and delay again until the Veteran dies. Frankly, that’s not gonna work with me, because I’m getting a lawyer and do not plan on dying anytime soon. That said, it is the Vietnam Vet or older (I’m a relatively young Vietnam Vet) hitting their late 60s to 70s and either PTSD or Agent Orange taking its toll that will be hardest hit by this long and winding road to death. We younger Veterans have time. Time, time, time is on our side in most cases minus those youngster who succumb to PTSD (suicide) or whatever crud they bring back from Iraq, Afghanistan, or whatever tests the military has exposed them to (vaccinations come to mind). However, in relative terms to my generation time is on our side to no shit break this never ending stranglehold over the VA system and not be part of its eventual destruction. In the final analysis since we are a group treated equally when it comes to being screwed, we can’t do this with the legal profession. Hell, Congress has forever been knee deep in lawyers and most are NOT former JAG officers. Major Hanafin)

Judicial Review: A veteran has 120 days from the date stamped on the adverse BVA decision to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. A Notice of Appeal which is filed after 120 days will be accepted by the Court but will be ultimately challenged by the VA’s General Counsel, and in all likelihood the appeal will be dismissed due to the untimely filing of the Notice of Appeal. (As any Veteran with half out brain tied behind our back can see – THIS IS MOST LIKELY THE PRIME TIME WE NEED AN AFFORDABLE LAWYER!!! If we though dealing with the Regional Office will kill you, you ain’t seen anything yet. I was recently reminded that far too many Veterans have died as this system waited them out. Major Hanafin).

winding_road_400Reconsideration of the Board of Veterans’ Appeals Decision: VA regulations provide that a veteran at anytime may ask or seek Reconsideration by the Board of Veterans’ Appeals of any prior adverse decision. In the context of a current decision, if the veteran files a Motion for Reconsideration within 120 days of the adverse decision, then the time for filing a Notice of Appeal to Court has been tolled. Tolled means it is stopped or suspended. The time for filing a Notice of Appeal when a Motion for Reconsideration has been filed within 120 days of an adverse Board decision suspends the time for filing a Notice of Appeal in Court until the Board has acted on the Motion for Reconsideration. Upon receipt of the decision on the Motion for Reconsideration, the date file-stamped on the Board’s letter denying the Motion restarts the 120 day time period. This means a veteran has 120 days after a decision denying a Motion for Reconsideration to file an appeal with the Court. Although there is no time limit for filing a Motion for Reconsideration, any Motion for Reconsideration filed after 120 days, while it will be accepted and decided by the Board, DOES NOT toll the time for filing a Notice of Appeal. This is a common mistake and misunderstanding which many pro se veterans make. The BVA’s Notice of Appellate Rights is somewhat confusing and misleading in this regard. A veteran should consult with a competent veterans law practitioner after receiving any decision from the Board of Veterans’ Appeals.

*The foregoing "Overview of the VA Claims Process" comes from the National Organization of Veterans’ Advocates webpage at: http://www.vetadvocates.com/claims_proc.htm

AND the Law Offices of Robert A. Friedman and Associates, 3410 Broadway, Everett, Washington State 98201. http://www.rafalaw.com/VAdisability3.html

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