Overview of the VA Practice Summer 2019

Basic Flow of Practice U.S. SUPREME COURT U.S. COURT OF APPEALS FOR THE FEDERAL CIRCUIT COURT OF APPEALS FOR VETERANS CLAIMS (CAVC) Approve, Deny, Remand BOARD OF VETERANS’ APPEALS (BVA) VA REGIONAL OFFICE

Eligibility The claimant must be a veteran Veteran is defined as “a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.” 38 C.F.R. § 3.1(d) (2013); 38 U.S.C.S. § 101(2). For the most part, veterans are eligible for VA benefits whether they served in a time of war or peace.

Administrative Claim Life-cycle 1 Veteran files a Claim for a Disability with the VA 2 Rating Decision 3 Notice of Disagreement (1 year) 4 SOC 5 VAF-9 (60 days) 6 SSOC 7 Certification to Board 8 Board Decision

Filing a Claim Claims must be filed on the appropriate form (21-526EZ or 21-526b) either by submitting the claim online or sending it to the Evidence Intake Center Assistance in filing claims is available from Veterans Service Organizations (VSOs) as well as attorneys or agents recognized by the VA.

Filing a Claim The goal of an initial claim is to obtain service connection, the veteran must allege: A current disability; That the disability existed during active military service and was caused or aggravated by the same; And that there is a nexus between the current disability and service. See Hickson v. West, 12 Vet. App. 247, 252 (1999).

The Rating Decision

Appeals If a veteran disagrees with any part of the rating decision, he or she may file a Notice of Disagreement (NOD) disputing: The denial of service connection, The effective date of the award, The evaluation of the disability.

Appeals The VA will respond to the NOD by issuing a Statement of the Case (SOC): 1. A detailed explanation of the evidence, laws, and regulations used in making the decision. 2. If the veteran still does not agree with the decision, he or she then files a VA Form 9, formal appeal to the Board of Veterans’ Appeals.

Statement of the Case To appeal a decision after receiving the SOC, you will need to file a VA Form 9 within 60 days of the date on the SOC. If you submit additional evidence after receiving the SOC, the VARO is required to issue a Supplemental Statement of the Case (SSOC) addressing that evidence.

Statement of the Case The VAF9 is the formal appeal to the Board of Veterans’ Appeals. At this point, you can elect to have a Board hearing before a Veterans Law Judge. Electing a hearing can slow down the process and delay a decision. However, if a veteran’s testimony is critical, and he or she is credible, it may be worth having a hearing. You can also elect not to have a hearing and submit written statements The VA still needs to certify the claims to the Board. Some veterans who have filed the VAF 9 can wait for years to have their claims certified, so be sure to check periodically to ensure the case is moving forward.

The Board of Veterans’ Appeals The Board will review the veteran’s claims file, along with the transcripts of any hearings, and any additional evidence or arguments submitted by the claimant or counsel: The review is de novo, and cases are handled in strict docket order. Claims may be expedited in limited circumstances (advanced age, terminal illness, or severe financial hardship).

Board of Veterans’ Appeals Claims can be granted, denied, or remanded for additional development. Granted claims go back to the VARO for a new rating decision to be issued. In cases where service connection is granted, the VARO will usually determine the appropriate evaluation. Denied claims may be appealed to the CAVC. Remanded claims will either be granted by the VARO with a new rating decision, or denied with a SSOC, which will then go back up to the Board for review.

The Board of Veterans’ Appeals The Board issues a decision that allows, denies, or remands the claims. Denied or allowed claims are final, whereas remanded claims remain on appeal. Denied claims may be appealed to the Court of Appeals for Veterans Claims (CAVC), reopened at the Regional Office with new and material evidence, or claimant can ask the Board to reconsider or review case again on the basis of clear and unmistakable error (CUE).

Court of Appeals For Veterans Claims The US Court of Appeals for Veterans Claims (CAVC) has exclusive jurisdiction to review BVA decisions. 38 U.S.C.S. 7252(a). The CAVC is a federal court and is outside the VA system. The CAVC reviews the record solely for errors; no new evidence, new arguments, or new objections Notice of appeal must be filed within 120 days of the Board Decision, 38 U.S.C.S. 7266(a). You must be admitted to practice before the CAVC. Success at the CAVC (either a grant or a remand) results in EAJA fees.

Next Steps in Appeals Adverse opinions from the CAVC may be appealed to the US Court of Appeals for the Federal Circuit. Appeals of this nature must be a direct challenge to VA regulations and VA policies of general applicability. Must be filed within 60 days of the final CAVC decision. Claimants may petition the US Supreme Court for certiorari within 90 days of the Federal Circuit’s final action. (Ex: Henderson v. Shinseki, 131 S. Ct. 1197 (2011).

Upcoming Changes to Appeals Rating Decisions issued on or after February 19, 2019, are processed under the Appeals Modernization Act. If you have additional evidence, use the supplemental claim lane with VA Form 20-0995. If you believe there has been a mistake in the application of law or regulation, or you need additional evidence, use the higher level review lane with VA Form 20- 0996. You may also appeal directly to the Board of Veterans appeals with a Notice of Disagreement on Form 10182. For each claim, you may choose different lanes: new evidence, evidence and a hearing, or review only. Attorneys will need to be strategic in which lanes they choose going forward.

Important Considerations For Lawyers Claims can take several years to adjudicate Hiring an attorney does not speed up the process for veterans. Veterans often have multiple claims in various stages of the process, and a veteran’s case may be complicated by intertwining issues.

Important Considerations For Lawyers Secondary claims are dependent on service connection for the primary claim, which can be on appeal. Do not assume that the VA reviewed all evidence in the veterans file, or that it has looked at the evidence in the same light. The VA often fails to notify counsel when appeals are decided Conduct periodic checks of the electronic claims file should be done if possible.

Questions? Contact Information: stephani@jsberrylaw.com 1-888-883-2483 PTSDlawyers.com

Dependents and Indemnity Compensation Surviving dependents such as spouse, surviving child or surviving parent may apply for monthly benefits from the VA if the veteran’s death was service connected. 38 U.S.C.S. § 1310. Only a surviving spouse, dependent child, or dependent parent is entitled to monthly payments, and surviving spouses have primary rights.

Dependents Educational Assistance Dependents’ Educational Assistance provides educational opportunities to spouses and children whose education or support would otherwise be impeded or interrupted because the veteran parent or spouse suffers from a severe service-connected disability. The law changed in 2000 to allow eligible survivors who file for DEA within one year after VA awards DIC or a permanent and total disability rating to be paid benefits that are retroactive to the date of the VA decision. 38 U.S.C.S. 5113(b).

US Court of Appeals for the Federal Circuit The US Court of Appeals for the Federal Circuit hears administrative law cases, including veterans claims. A panel of three judges selected at random hear the cases and issues a decision. Losing parties may appeal the decision to the US Supreme Court.