Charting a Course Through the VA Claims Process: Basic Overview Christie Bhageloe, Esq. Veterans Project Manager Community Legal Services of Mid-Florida, Inc.

Florida Veteran Statistics ► Florida is home to the third largest population of military veterans in the United States. More than 1.6 million veterans reside in Florida, including more than 231,000 who have served since September 11, 2001 in Iraq and Afghanistan. Veterans comprise 12% of the adult population in Florida. Source: Florida Department of Veterans Affairs

Homeless Veterans ► Veterans account for 11% of the national homeless population. ► Most suffer from combat-related mental health and substance abuse problems or co- occurring disorders. ► ► Roughly 45% of all homeless veterans are African American or Hispanic, despite only accounting for 10.4% and 3.4% of the U.S. veteran population, respectively. Source: National Coalition for Homeless Veterans

CLSMF’s Veterans Project ► Serves 12 counties in Central Florida: ► Serves 12 counties in Central Florida: Brevard, Citrus, Flagler, Hernando, Lake, Marion, Orange, Osceola, Putnam, Seminole, Sumter and Volusia. ► Services: -Initial VA disability claims -Initial VA disability claims -Disability appeals (Regional Office, Board of Veterans Appeals & federal Court of Appeals for Veterans Claims) -Disability appeals (Regional Office, Board of Veterans Appeals & federal Court of Appeals for Veterans Claims) -Discharge upgrades -Discharge upgrades -VA Overpayments -VA Overpayments -VA Rating Reductions -VA Rating Reductions

VA Benefits Overview ► Two main types of benefits: 1. Service-connected disability compensation 2. Low-income pension ► A veteran cannot receive both types of compensation at the same time. ► A veteran can receive VA disability and Social Security Disability simultaneously

Service Connected Disability Compensation ► What you must prove: 1) Veteran status- a person who served on active duty and who was discharged honorably or other than dishonorable 2) Current disability- veteran’s disability must exist currently 3) Service connection- must show that the disability is linked to an event/injury in service 4) Medical nexus- need medical opinion linking the in service event/injury to the current disability (“as likely as not” standard) 5) Compensation rates vary from 0%-100% or $0 to $2,906 per month and above based on family size and other factors

How to File for Service Connected Disability Compensation ► To establish the earliest possible effective date, file an Intent to File Form Intent to File Form Intent to File Form ► After you file the Intent to File you have one year to file a VA form Disability Application Disability ApplicationDisability Application ► Request and review service medical & personnel records and submit current medical records in support of the claim Request Military Records Request Military Records Request Military Records ► Submit claim online through eBenefits or send certified mail to the new centralized VA Claims Intake Center: eBenefits Department of Veterans Affairs Claims Intake Center PO Box 5235 Janesville, WI

Charting a Course Through the VA Claims Process: Advanced Christie Bhageloe, Esq. Veterans Project Manager Community Legal Services of Mid-Florida, Inc.

Current Disability ► A veteran is not eligible for compensation simply because he suffered an injury or stressful event in service but has no lasting symptoms. ► A current medical diagnosis is almost always required, or other “competent medical evidence.” ► It is important to seek medical treatment and diagnosis from the VA or private doctors to strengthen your disability claim.

VA’s Duty to Assist ► For initial disability claims, the VA has a duty to help veterans obtain necessary medical diagnoses: ► 38 U.S.C.S. 5103A(d): VA required to provide a medical examination or opinion when one is “necessary to make a decision on the claim.” ► A medical exam is considered “necessary” when all evidence of record contains competent evidence that there is a current disability or recurrent symptoms, and indicates it may be related to service, but does not contain sufficient evidence to make decision.

Service Connection ► Presumption of Soundness- unless the entrance exam noted a medical problem, the VA is required to presume the veteran was in sound condition when he entered the military. ► If medical problem noted in entrance exam, presumption does not apply. ► Presumption can only be rebutted by “clear and unmistakable evidence” that the injury or disease existed prior to service and that the disease or injury was not aggravated by service.

Direct Service Connection ► 38 CFR § 3.303(b) ► Show through Service Trmt Recs (STRs) that condition manifested or was diagnosed during military service. ► Delayed direct- can be service-connected even if disease or injury in service caused veteran to suffer years or decades later ► Combat Veteran- 38 USCS § 1154(b): When a veteran engaged in combat during wartime, VA shall accept as sufficient lay or other evidence of service connection as long as it is consistent with circumstances.

Direct Connection continued… ► Chronicity & Continuity ► If in service condition is chronic, then subsequent manifestations are service connected (38 U.S.C. § 1101(3) list of chronic diseases) ► If not on the list, can prove chronicity by medical evidence ► If condition is acute, continuity of symptoms without intervening causes is required ► Submit evidence showing that veteran has been treated for symptoms of injury after discharge

Proving Aggravation ► Pre-existing injury/disease increase in severity during service ► VA cannot simply deny a claim because the disability was noted in the entrance exam ► Burden shifts to VA to show a lack of aggravation by establishing that the “increase in disability was a natural progression of the disease.” ► Clear & unmistakable evidence required to rebut presumption of soundness for pre-existing condition (use medical records to show increase in severity)

Statutory Presumptions ► Chronic diseases ► Tropical disease ► Radiation exposed veterans ► Exposure to herbicide- Agent Orange ► Gulf War environmental exposures ► Prisoners of War

Other Ways to Prove Service Connection ► Secondary Claim: Demonstrate that a disability is the proximate result of an existing service-connected disability ► Medical malpractice by VA: service connection may be established if caused by fault or accident of VA medical treatment

Medical Nexus Opinion ► Competent medical evidence- evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, and opinions. 38 CFR § 3.159(a)(1)(2009) ► Treatises and authoritative writings can also be used. ► Use VA or private medical opinion to link current disability to injury/event during service

Medical Nexus: Private Doctor ► Doctor should review: 1) Claims file (C-file) 2) Current medical records 3) Service Treatment Records (STRs) ► Medical opinion should state “I have reviewed the pertinent records in the veteran’s VA file.”

Standard of Proof ► 38 USCS § 5107(b): “Benefit of the doubt rule”: “When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.” ► Medical evidence of record needs to show it is “at least as likely as not” (50% chance) that there is a nexus or link between an in-service injury, disease or event and the current disability.

Rating Percentages ► After service connection is established, the disability is rated between 0-100% based upon reduced earning capacity ► TDIU- Total Disability Based on Individual Unemployability: 100% may be granted even when disabilities are not rated 100%, if VA finds veteran is unable to secure “substantially gainful employment” (above poverty level wages) ► Compensation chart: 38 USCS § 1114: 10%= $133/mo 50%= $836/mo 90%= $1743/mo 100%= $2,906/mo

Service Connected Mental Health Disorders ► 38 CFR § Categories: 1. Schizophrenia & other Psychotic Disorders 2. Delirium, Dementia, and Amnestic and other Cognitive Disorders 3. Anxiety Disorders (including PTSD) 4. Dissociative Disorders 5. Somatoform Disorders 6. Mood Disorders 7. Chronic Adjustment Disorder 8. Eating Disorder

Mental Health Disorders Continued ► Show veteran has current mental disorder ► Personality disorders are considered congenital and not compensable ► Submit medical nexus opinion linking current disorder to service ► PTSD- must specifically file for PTSD to get a VA exam for PTSD, otherwise veteran gets a generic mental health exam

How to File ► To establish the earliest possible effective date, file an Intent to File Form Intent to File FormIntent to File Form ► After you file the Intent to File you have one year to file a VA form Disability Application Disability ApplicationDisability Application ► Enclose: Service Treatment Records (STRs) showing in-service injury/event, DD-214 (discharge paper), current medical records (showing current disabilities), medical nexus opinion

Filing Continued… ► Submit claim online through eBenefits or send certified mail to the new centralized VA Claims Intake Center: eBenefits Department of Veterans Affairs Claims Intake Center PO Box 5235 Janesville, WI ► Be sure to save copies of everything submitted to the VA

Low Income Pension ► Monthly compensation for war-time veterans (no “boots on the ground” requirement) with annual income under $12,868 ► Must be totally & permanently disabled (non-service connected) OR over the age of 65 ► Pension amount will be reduced by any countable income

Wartime Service Requirement ► ► Only for wartime veterans (combat zone not required) who generally must have served 90+ days of active duty, one day of which must have been during a wartime period: Indian Wars: 1/1/ /31/ USCS §1511(b); 38 CFR §3.2(a) Spanish-American War: 4/21/1898-7/4/ USCS §101(6); 38 CFR §3.2(b) Mexican Border War: 5/9/1916-4/5/ USCS §101(30); 38 CFR §3.2(h) World War I: 4/6/ /11/ USCS §101(7); 38 CFR §3.2(c) World War II: 12/7/ /31/ USCS §101(8); 38 CFR §3.2(d) Korean Conflict: 6/27/1950-1/31/ USCS §101(9); 38 CFR §3.2(e) Vietnam Era: 8/5/1964-5/7/ USCS §101(29); 38 CFR §3.2(f) Persian Gulf War: 8/2/1990-present 38 USCS §101(33), 1501(4); 38 CFR §3.2(i) 90+ days of service applies to veterans who enlisted before 9/7/80 38 USCS §1521(j)(3) 24+ months or the full period of active duty for veterans who enlisted after 9/7/80 38 CFR §3.12a(c)(1) May qualify with less than minimum service period if discharged due to a disability. 38 USCS §1521(j)(2)

Pension Continued ► Unreimbursed Medical Expenses (UME)- claimant may spend down his countable income by the amount of out-of-pocket medical expenses ► Asset Test- no set amount, but it is rumored to be $80,000 for a couple and $40,000 for a single veteran ► No “look back” period regarding transfer of assets to meet asset guidelines

Special Monthly Compensation ► Veterans suffering from severe physical or mental disabilities may be eligible for higher compensation based upon: Housebound benefits- substantially confined to dwelling Housebound benefits- substantially confined to dwelling Aid & Attendance- blind or nearly blind, in a nursing home, or in regular need of aid & attendance from another person to perform activities of daily living (ADLs) and protect claimant from the everyday hazards of life (must submit medical opinion supporting this claim) Aid & Attendance- blind or nearly blind, in a nursing home, or in regular need of aid & attendance from another person to perform activities of daily living (ADLs) and protect claimant from the everyday hazards of life (must submit medical opinion supporting this claim)

Current Pension Rates 2016 ► Veteran without dependents: $12,868/year or $1,072/month ► Housebound without dependents: $15,725/year or $1,310/month ► Aid & Attendance without dependents: $21,466/year or $1,788/month

Aid & Attendance Example #1 ► Veteran’s income is $2,000/month (over income for all pension categories) -Has unreimbursed medical expenses (including Medicare premium) of $4,800/yr -Veteran’s adjusted income is $19,200/yr -Veterans is found to need aid & attendance, so veteran is entitled to $2,266/yr

Aid & Attendance Example #2 ► Veteran earns $2,000/mo -Veteran is found to be in need of Aid & Attendance (A&A) and is living in an assisted living facility (ALF) -Cost of ALF is $1,500/mo -Veteran’s Adjusted Income= $500/mo -Pension A&A award= $1,288/mo

How to File for Pension & Special Monthly Compensation ► Pension Application completed & signed Pension Application Pension Application ► DD-214 showing wartime service ► Marriage certificate (if claiming spouse) ► Medical records showing current disability. If claimant is 65+, do not have to include medical records unless trying to prove need for A&A ► Proof of income ► Receipts for medical expenses ► Submit online through eBenefits or send certified mail to: ► Submit online through eBenefits or send certified mail to: Philadelphia VA Regional Office, Pension Management Center, PO Box 8079, Philadelphia, PA 19101eBenefits

How to File Continued… ► For Aid & Attendance or Housebound claims, also include: -Medical statement from doctor stating that claimant is in need of regular aid & attendance and listing current disabilities -If you cannot obtain a private medical statement, the VA will order a Compensation & Pension (C&P) exam to determine eligibility

Self-Advocacy Tips ► Florida only has one VA Regional Office in St. Petersburg, so expect long delays for decisions, especially for appeals ► Applying online through eBenefits should speed processing of your initial claim or appeal eBenefits ► VA has a duty to assist with establishing a claim, but do not rely on them to do your job for you. It is in your best interest to gather all pertinent service records, medical exams, etc. and organize it in a user-friendly fashion for the overworked claims examiner

Requesting Records ► Use SF 180 to request service treatment records (STRs) and DD-214s online or by mail SF 180 SF 180 ► Expect to wait a few months to receive the records ► Review the STRs, organize by date and highlight important dates, injuries, and locations ► If you have filed a VA claim before, request claims file (c-file) by mailing a request letter Department of Veterans Affairs Claims Intake Center PO Box 5235 Janesville, WI

Appeals- Board of Veterans Appeals ► VA issues a Rating Decision explaining its decision on the initial claim ► If the decision is unfavorable, veteran has one year from the date the rating decision was mailed to appeal by filing a Notice of Disagreement (NOD) Notice of DisagreementNotice of Disagreement ► File NOD through eBenefits or mail certified to Claims Intake Center and choose an option: eBenefits a) Standard appeal to the Board of Veterans Appeals (BVA) b) Decision Review Officer appeal at the Regional Office

BVA Standard Appeal ► If you elect a BVA appeal on your NOD, VA will send Statement of the Case (SOC) outlining decision and applicable law ► You only have 60 days from mailing date of SOC to send VA Form 9 to Claims Intake Center outlining which issues you wish to appeal ► On VA Form 9, you can request a video or in person hearing with BVA (but will slow down decision as there is a scheduling backlog of several years) VA Form 9VA Form 9 ► Current decision time once the file is docketed at the BVA is 2-3 years

Decision Review Officer Appeal ► De novo review of entire C-file by Decision Review Officer (DRO) ► DRO is a claims examiner with 5-10 yrs experience ► DRO has ability to either affirm the RO’s decision or reverse it and grant claims ► This appeal process is currently taking 2-3 years at the St. Petersburg Regional Office

DRO Continued… ► DRO process provides an opportunity to have a favorable decision without appealing to the BVA ► Two bites at the apple: Can appeal to DRO and then appeal to BVA if denied by DRO ► If DRO does not grant claim, a Statement of the Case (SOC) is issued and you must then appeal to the BVA by filing VA Form 9 within 60 days of SOC in order to continue your appeal to the BVA VA Form 9VA Form 9

Board of Veterans Appeals ► After VA Form 9 is submitted…  If you requested a hearing, one will be scheduled via video conference at RO, in person at BVA in DC, or an in person hearing at the RO with traveling board from BVA (rules of evidence are relaxed & hearsay is admissible)  Regional Office certifies the claim to the BVA (this may take several months or even years)  The appeal is docketed at BVA and given a docket #  You should receive a notice that appeal has been docketed and that you have 90 days to submit additional evidence and a legal brief if you wish

Court of Appeals for Veterans Claims ► If BVA affirms the RO decision:  Request BVA to: -Reconsider the decision (beware that appeals clock will still be running) -Vacate the decision, -Reverse on “clear and unmistakable error,” or -Reopen claim at RO level with new & material evidence (must not have been considered before and be dispositive)  Appeal to CAVC within 120 days from date of final BVA decision  Seek an attorney’s help as this is a federal court appeal- call CLSMF or search for CAVC accredited attorney on the court’s website website  CAVC has exclusive jurisdiction to review BVA decisions  CAVC can only review evidence that was before the BVA  If CAVC returns unfavorable decision, may file in Federal Court

Survivor’s Benefits- Brief Overview ► DIC- Dependency & Indemnity Compensation- pays a monthly benefits to a surviving spouse, dependent child, or dependent parent of a veteran who dies of a service- connected condition ► 38 CFR § the death of a veteran will be considered to be service connected when the evidence established that such disability was either the principal or contributory cause of death ► Primary- when the service connected disability was the immediate or underlying cause of death ► Contributory- when the service connected disability contributed substantially or materially, aided or combined to cause death

Dependency & Indemnity Compensation (DIC) ► Surviving Spouse  Validly married the veteran before 01/01/57 or  Was married to a service member who died on active duty, or  Married to veteran within 15 yrs of discharge, or  Was married to veteran for at least one year, or had a child with the veteran, and cohabited with the veteran continuously until his death and was not remarried before 12/16/03 or before the age of 57 Surviving Child  Under 18 or between and attending school or  Became disabled and unable to support himself before the age of 18

How to File for D.I.C. ► VA Form (if you are spouse or child) ► VA Form (dependent parent) ► Send via certified mail to: Philadelphia VA Regional Office Pension Management Center PO Box 8079, Philadelphia, PA ► Ask a local Veterans Service Officer (VSO) for help in filing this type of claim ► More information on VA website VA websiteVA website

Resources & Contacts ► To check on the status of a claim at the VA Regional Office: ► To check on a pension claim: ► To check on a BVA appeal: ► Find a Veterans Service Officer (VSO) near you Veterans Service Officer Veterans Service Officer ► Contact Community Legal Services of Mid-Florida to see if you qualify for free legal assistance: (800)