Representing Veterans Before the VA on Claims for Disability Benefits Presented by Bart Stichman National Veterans Legal Services Program

Major VA Benefit Programs Service-Connected Disability Benefits (“Compensation”) Service-Connected Death Benefits for qualified survivors of deceased veterans (“DIC”) (Needs-based) Non-Service-Connected Disability Pension Benefits for war-time veterans (Needs-based) Non-Service-Connected Death Pension Benefits for certain qualified survivors of deceased war-time veterans

TOPIC A: Entitlement Criteria for Service-Connected Disability Compensation

Service-Connected Disability Compensation VA makes up to four determinations in deciding a disability compensation claim: Is the claimant a “veteran”? If yes, Is veteran entitled to “service connection” for the claimed disability(ies)? If yes, Degree of the veteran’s service-connected disability and The effective date of the award of disability compensation

Status as a “Veteran” Definition of Veteran - A “person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable”

Willful Misconduct Willful Misconduct: Alcohol and Substance Abuse: Disabilities that result from a veteran’s willful misconduct are not compensable “conscious wrongdoing or known prohibited action” Alcohol and Substance Abuse: Compensation may not be paid for disabilities the result of primary alcohol abuse or substance abuse

Alcoholism and Substance Abuse/STDs Alcoholism/Substance Abuse as Secondary to a Service-Connected Condition(s): Compensation payable if abuse-related disabilities are secondary to a service-connected disability Any disability resulting from that alcoholism or drug abuse, such as cirrhosis of the liver, may also be service-connected Residuals of venereal disease or HIV are not willful misconduct

Status as a “Veteran” (Cont’d) Character of Discharge Discharge or release must have been “under conditions other than ‘dishonorable’” Honorable Discharge and General Discharge Under Honorable Conditions → qualifies Discharge Under Other Than Honorable Conditions (OTH) → may or may not qualify (VA makes individualized “character of service” determination)

Overview of Entitlement Criteria Veterans are entitled to compensation for disabilities incurred in or aggravated during period of active military, naval, or air service Note - Service department findings are binding on VA for purposes of establishing service in the U.S. Armed Forces

Entitlement Criteria (Cont’d) Example: A battlefield wound to knee and a knee injured while sliding into second base during a baseball game played during active service may both be service-connected conditions

Entitlement Criteria (Cont’d) Assuming “veteran” status there are three basic entitlement criteria: Evidence the veteran currently suffers from a disability Evidence of an incident, injury, or event during the period of the veteran’s military service Evidence of a link between the current disability and the incident, injury, or event during service

Three Criteria for Service Connection First Criterion: Evidence that the veteran currently suffers from a disability Disability almost always must be diagnosed by a medical professional Under VA’s duty to assist – lay evidence of vet’s recurrent symptoms may force the VA to provide a free VA medical examination to diagnose the disability

Three Criteria for Service Connection (Cont’d) Second Criterion: Evidence of an event, injury, or disease that occurred during the period of active military service VA is required to consider lay evidence; no corroborative evidence technically required Relaxed evidentiary standards for combat veterans

Three Criteria for Service Connection (Cont’d) Third Criterion: A link or nexus between the current disability and an event, injury or disease that occurred during the period of military service There are five major ways to establish linkage; VA must consider each theory reasonably raised by the evidence of record VA must make reasonable efforts to assist vet in substantiating the claim

Five Ways To Establish a Disability is Service-Connected Directly: Disability was manifested or diagnosed during military service, or an injury, event or incident in service caused the veteran eventually to suffer from a disability “Delayed Direct Service Connection” Chronicity and Continuity Chronic Conditions - A condition shown in service is determined to be “chronic” Continuity of Symptomatology

Five Ways To Establish a Disability is Service-Connected (Cont’d) Aggravation: worsening of a condition that preexisted service Temporary or intermittent flare-ups are not sufficient unless the underlying condition permanently worsened Presumption of Soundness - Unless the service entrance exam indicates otherwise, the VA presumes the veteran was in sound condition when he or she entered the service

Five Ways To Establish a Disability is Service-Connected (Cont’d) Statutory Presumption: Chronic Diseases Tropical Diseases POWs Persian Gulf Veterans Radiation-Exposed Veterans Exposure to Herbicide Agents (Agent Orange)

Five Ways To Establish a Disability is Service-Connected (Cont’d) Secondarily: Demonstrating that a condition is proximately the result of, or linked to, a service-connected condition Ex: Secondary SC may be established for a mental condition caused or aggravated by a SC physical condition Likewise, secondary SC may be established for a physical condition caused by a SC mental condition

Five Ways To Establish a Disability is Service-Connected (Cont’d) VA Medical Treatment or Vocational Rehabilitation: Disability caused by VA medical care or vocational rehabilitation may be treated “as if” it is connected to service Requires showing of fault or accident

TOPIC B: Establishing the Appropriate Disability Rating Percentage

Establishing the Appropriate Percentage of Disability Assignment of Appropriate percentage: Correct diagnosis and the assignment of the correct “diagnostic code” (DC) Determining the current symptomatology Comparing the symptomatology against the appropriate diagnostic code

Establishing the Appropriate Percentage of Disability (Cont’d) General Information: Percentage designed to reflect the average impairment in earning capacity ≥2 SC disabilities → combined disability rating (percentages are not added arithmetically) Different disabilities may arise from a single disease entity → separated disability ratings

Establishing the Appropriate Percentage of Disability (Cont’d) General Information: Percentages are set in increments of 10, but may be zero Functional loss due to pain and weakness has to be separately considered and rated One disability may be compensated under multiple diagnostic codes→ separate disability ratings -- if “none of the symptomatology . . . is duplicative of, or overlapping. . . .”

Disability Payments Disability compensation is not taxable and is not subject to garnishment or attachment The level of payments is fixed by statute The following rates are effective 12/1/2012 10% combined rating pays $129 per month 50% combined rating pays $810 per month 100% combined rating pays $2,816 per month

Additional Compensation Additional Compensation for Dependents if at least 30% disabled for service-connected disabilities Monthly rates for dependents of veterans rated 100% Spouse $157 No spouse, one child $105 Spouse and one child $272 Each additional child $78 Dependent parent $126 Child pursuing post-secondary education $252

Eligibility for Increased or Special Monthly Compensation Increased or SMC above 100% amount: Aid and Attendance In other situations

Total Disability Based on Individual Unemployability (TDIU) TDIU - 100% rating even though the service-connected condition(s) are rated less than 100% Disabled veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities

Total Disability Based on Individual Unemployability (Cont’d) To qualify: Unable to engage in a substantially gainful occupation (SGO); and Veteran has: One SC disability rated at 60% or more; or Two or more disabilities, one of which is rated at least 40% and additional service-connected disabilities to bring the combined rating to 70% or more; or Can by assigned an extraschedular rating under 38 C.F.R. § 4.16(b)

Total Disability Based on Individual Unemployability (Cont’d) A SGO provides annual income that exceeds the poverty threshold for one person Education and occupational history considered “Marginal employment” should not be considered SGO TDIU should be provided to all veterans who are unable to secure and follow an SGO due to service-connected conditions

Extraschedular Rating for a Service-Connected Disability Where a case “presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards”

Reevaluation of Disability VA may choose to reevaluate a service-connected condition VA may increase or decrease the percentage evaluation If there is no change, the VA will “confirm and continue” VA will usually schedule a review examination

Reduction in Evaluation Reduction of an established percentage: VA must demonstrate the SC condition has improved to the point where a lower percentage of disability should be assigned Possible in some cases to gauge with non-medical evidence

Reduction of a Total Schedular Evaluation An examination showing “material improvement” under “the ordinary conditions of life” is required VA must compare the symptomatology which formed the basis for the previous grant with the symptomatology of the most recent or last exam

Reduction of Grant of IU VA must demonstrate that “actual employability is established by clear and convincing evidence” If engaged in SGO, TDIU may not be reduced solely on that basis unless the veteran maintains the occupation for 12 consecutive months

Rating in Effect for 5 Years Rating In Effect for 5 Years or More May not reduce the rating unless all evidence of record shows sustained improvement Cannot be reduced on examinations reflecting the results of bed rest

Rating in Effect for 5 Years (Cont’d) To reduce a rating in effect for 5 Years: Must find there has been an improvement Improvement in the ability to live and work History of the disability must be reviewed Reduction must be based upon a thorough current examination Must find “it reasonably certain that the improvement will be maintained under the ordinary conditions of life”

TOPIC C: VA Claims Adjudication Process

Adjudication Process at the VARO The process begins with receipt of a claim Formal Claim Informal Claim Both formal and informal claims must show: an intent to apply for benefits an identification of the benefits sought a communication in writing Inferred Claim Claim not directly articulated by the claimant but reasonably raised by the evidence of record

Adjudication at the VARO (Cont’d) ROs are required to notify the claimant of: Evidence/information necessary to prove the claim What information/evidence the claimant should provide What information/evidence VA will attempt to obtain Claimant has one year from the date of notification to respond with requested information/evidence

Adjudication at the VARO (Cont’d) Then the case is referred to an RO rating specialist The decision is recorded in a VA rating decision Notification letter to claimant and “Rating Decision” includes: A statement of the reasons for the decision A summary of the evidence considered by the VA Notice of procedural and appellate rights

Administrative Appellate Process To initiate an appeal: Claimant or claimant’s authorized rep must file a written notice of disagreement (NOD), which must: Express disagreement with a specific determination Express desire for appellate review Be filed with the RO Within one year of the RO decision

Administrative Appellate Process (Cont’d) Upon receipt of the NOD, VARO must review the claims file and either: Allow (i.e., grant) the claim; or Issue a Statement of the Case (SOC)

Administrative Appellate Process (Cont’d) De Novo Review by DRO: Optional review takes place between the filing of the NOD and VA’s issuance of the SOC DRO review must be requested within 60 days after date of VA letter offering DRO review

Administrative Appellate Process (Cont’d) DRO may conduct an informal conference or a hearing DRO may uphold, revise, or reverse, but may not revise or reverse in a manner adverse to the claimant unless the earlier decision contained clear and unmistakable error Traditional appellate process proceeds as usual after the DRO decision

Regional Office Hearings Veteran can have a hearing before a DRO or other VA employee Can be held “at any time” Hearing officer must “explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant’s position”

Substantive Appeal - VA Form 9 After the SOC claimant must perfect the appeal File a VA Form 9 VA Form 9 should be filed with the RO that made the decision being appealed Veteran has 60 days from SOC or the remainder of the one-year period that began with the date of the mailing of the VA letter of denial - whichever is longer

Substantive Appeal (Cont’d) VA Form 9 should include: Factual and legal errors in the RO decision Can raise new theories, expand the issues before the BVA, and present claims for different VA benefits RO may respond to the VA Form 9 with a rating decision or Supplemental Statement of the Case (SSOC)

Board of Veterans’ Appeals BVA is the final arbiter Assigned to a single Board member Jurisdiction over all questions on claims involving benefits under the laws administered by the VA No jurisdiction over medical decisions Case is considered de novo

Board of Veterans’ Appeals (Cont’d) A claimant may present new documentary evidence and/or witnesses BVA must remand to the agency of original jurisdiction if further evidence, clarification of evidence, or correction of a procedural defect is needed

Board of Veterans’ Appeals (Cont’d) Appellant may request an IME opinion Must show “a complex or controversial medical or legal issue involved in the appeal” Appellant has a right to a hearing: Before a BVA member sitting in Washington D.C. Before a traveling Board member at a RO A videoconference hearing at a regional VA facility

Board of Veterans’ Appeals (Cont’d) Precedent CAVC decisions establishing a rule of law must be followed by the RO/BVA Also bound to follow substantive manual provisions All BVA decisions must contain “a written statement of . . . reasons or bases. . . .” Must mail a copy to the claimant and rep BVA decisions can be appealed to the CAVC

Board of Veterans’ Appeals (Cont’d) Statistical Summary of BVA Dispositions: 48,588 dispositions in FY 2011 Allow/grant in 28.5% of cases Remanded 44.2% of cases Denied 24.2% of cases An additional 3.1% were disposed of through other means

TOPIC D: Judicial Review of a Final BVA Decision Denying Benefits

The U.S. Court of Appeals for Veterans Claims (CAVC) The Veterans’ Judicial Review Act (VJRA) of 1988 created the U.S. Court of Veterans Appeals There are now 9 judges on CAVC www.uscourts.cavc.gov CAVC has exclusive jurisdiction to review BVA decisions Only claimants who do not completely prevail at the BVA can appeal

Jurisdictional Requirements Two Jurisdictional Requirements A final BVA decision A BVA decision remanding a claim to a VA regional office is not a final decision Timely Notice of Appeal (NOA) Must be received by the CAVC or postmarked by USPS within 120 days of date on which BVA mails its final decision Equitable tolling of the 120-day appeal period is potentially available

Jurisdictional Questions Motion for Reconsideration/Vacate Motion filed at BVA within the 120-day CAVC appeal period New 120-day CAVC appeal period begins: The date the BVA receives the claimant’s notice of withdrawal; or The date the BVA properly sends the claimant notice of denial; or The date the BVA properly sends notice of its decision to deny complete relief after having granted the claimant’s motion No need to file a protective NOA with CAVC

Jurisdictional Questions (Cont’d) What happens when an NOA is filed at the CAVC and then a Motion for Reconsideration is filed at the BVA? BVA must obtain the Court’s permission to vacate decision Court will not dismiss the appeal if the NOA filed prior to the motion for reconsideration/vacate

Jurisdictional Questions (Cont’d) Two Other Scenarios: If NOA and reconsideration/vacate filed simultaneously, jurisdiction will remain with the Board If the motion for reconsideration is postmarked within the 120-day appeal period to the CAVC, the claimant will be able to receive Court review of the BVA appellate decision

Jurisdictional Exception Petition for Extraordinary Relief in the Nature of Mandamus The All Writs Act CAVC has jurisdiction to issue an extraordinary writ (writ of mandamus) to VA officials Can compel VA action Based upon potential jurisdiction Petitioner must demonstrate: (1) a clear and indisputable right to a writ and (2) the lack of alternative means to obtain the relief sought

Single-Judge or Panel Disposition? Single-Judge Disposition Single-judge decision issued in > 90% of all contested appeals Single-judge decisions are not precedential, not citable and not published in Vet. App. reporter Standards used by screening judge to decide whether to decide by single-judge: Case is of relative simplicity and: Does not establish a new rule of law

Single-Judge or Panel Disposition (Cont’d) Factors cont’d: Does not alter, modify, criticize, or clarify an existing rule of law Does not apply an established rule of law to a novel fact situation Does not constitute the only recent, binding precedent on a particular point of law within the power of the Court to decide Does not involve a legal issue of continuing public interest; and The outcome is not reasonably debatable

Scope of CAVC Review Scope is based upon Administrative Procedure Act, with certain exceptions CAVC review is based exclusively on the record of proceedings that was before the Secretary and the BVA Includes “relevant” documents within the Secretary’s control prior to the BVA decision

Scope of CAVC Review (Cont’d) Under 38 U.S.C. § 7261(a), CAVC can: Decide all relevant questions of law, interpret constitutional, statutory, and regulatory provisions Determine the meaning or applicability of the terms of an action of the Secretary Compel action of the Secretary unlawfully withheld or unreasonably delayed

Scope of CAVC Review (Cont’d) 38 U.S.C. § 7261(a) Cont’d: Hold unlawful and set aside decisions of the BVA found to be: arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law contrary to constitutional right, power, privilege, or immunity in excess of statutory authority, or limitations, or in violation of a statutory right without observance of procedure required by law

Standards of Review Standard of Review for Findings of Fact: Court can hold unlawful, set aside, or reverse factual finding if it is “clearly erroneous” CE = “when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed” “Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be clearly erroneous”

Standards of Review (Cont’d) Standard of Review for Issues of Law: De Novo Review of The proper interpretation of a statute or regulation Whether appellant would be prejudiced by the BVA deciding an issue not first decided by the RO

Standards of Review (Cont’d) Standard of Review for Application of Law to Facts: Arbitrary/capricious Examples A challenge to the VA’s selection of the appropriate diagnostic code for rating Whether BVA erred in determining that a prior final agency decision did not contain clear and unmistakable error (CUE)

Standards of Review (Cont’d) CAVC must review the record of proceedings below and take due account of: VA’s application of the benefit-of-the-doubt rule Rule of prejudicial error CAVC may not review or modify the VA schedule of ratings for disabilities CAVC may review VA regulations and precedential opinions of the VA General Counsel

Exhaustion of Administrative Remedies Applicability of the doctrine to CAVC review: If the claimant never raised or discussed an argument/issue while the claim was pending before VA, the Secretary may argue that the Court should not consider the issue Will the Court hear the claimant arguments raised for first time at CAVC level?

Exhaustion of Administrative Remedies (Cont’d) Courts have established two rules that are favorable to claimants: BVA is required to address all legal theories reasonably raised by the evidence even though the claimant did not argue these legal theories TDIU automatically considered if Claimant has a disability rating that meets the minimum schedular criteria for assignment of a TDIU rating and Evidence under VA control that the veteran is unemployable due to service-connected disabilities

Exhaustion of Administrative Remedies (Cont’d) CAVC has jurisdiction to consider any issue the claimant raises for the first time Federal Circuit ruled that this does not mean it must consider new issues But the Supreme Court ruled in a latter SSA case: Claimant is not required to raise an issue Can raise the new issue for the first time in federal court and the court must consider it. CAVC is applying issue exhaustion principles in a manner favorable to claimants

TOPIC E: Methods for Obtaining Benefits After a Final VA Denial

Major Options for a Claimant Reopened claim at the RO CUE motion at the RO or BVA Filing a Notice of Appeal with the CAVC Filing a Motion for Reconsideration with the BVA Key Factor - “Effective date” of benefits Date from which benefits will be paid

Reopened Claim Reopened Claim – Two Steps STEP ONE: Has the claimant submitted “new and material evidence”? “new” - existing evidence not previously submitted to agency decisionmakers “material” - if it, by itself or when considered with previous evidence of record, relates to at least one of the unproven facts necessary to substantiate the claim

Reopened Claim (Cont’d) “New and material” evidence does not need to relate to every previously unproven element of a claim VA must determine whether the new evidence, the previous evidence of record, and the additional evidence that future VA assistance could reasonably be expected to provide, raises a reasonable possibility of substantiating the claim VA must presume the credibility of the newly submitted evidence

Reopened Claim (Cont’d) STEP TWO: De Novo Review VA “must evaluate the merits of the veteran’s claim in light of all evidence, both old and new.” There is no time limit within which a claim to reopen must be filed and there is no limit on the number of claims to reopen a claimant may file

The Following are NOT Reopened Claims Claims for increased ratings Pension claims for P & T disability ratings TDIU claims Service connection for the POW presumptive diseases Claims filed after a change in the substantive criteria for entitlement to a benefit Claim based upon a different factual basis or a separate and distinctly diagnosed disease or injury than a prior claim

Motion for Reconsideration May move for reconsideration at anytime Motion must be: In writing Filed with the BVA Chairman and include the veteran’s name the VA file number the date of the Board decision to be reconsidered the alleged obvious error of fact or law or other appropriate basis for reconsideration

Motion for Reconsideration (Cont’d) Chairman may grant reconsideration: Upon an allegation of obvious error of fact or law Upon discovery of new and material evidence in the form of relevant records or reports of the service department Upon an allegation that an allowance of benefits has been materially influenced by false or fraudulent evidence

Motion for Reconsideration (Cont’d) If the Chairman orders reconsideration: BVA decision is vacated Reviewed by a reconsideration panel Decides the case de novo

Revision of Decision Based on CUE A successful CUE Claim “has the same effect as if the decision had been made on the date of the prior decision” File at any time after decision becomes final If CUE is present in a VARO decision, each CUE theory must be presented to and adjudicated by the RO in the first instance If CUE is present in a BVA decision, file CUE motion with the BVA in the first instance

Revision of Decision Based on CUE (Cont’d) Final BVA decisions are subject to CUE No time limit to file BVA’s disposition of the CUE motion is subject to CAVC review CUE must be based on the record that was before the adjudicator at the time of original decision making

CUE Pleading Requirements Clearly and specifically allege the error or errors of fact or law The legal or factual basis for such allegations Why the result would have been manifestly different but for the alleged error

CUE Case Law Benefit-of-the-doubt rule does not apply At the BVA, only one opportunity to raise an allegation of CUE challenging a RO or BVA decision on a particular claim CUE does not exist merely because there has been a favorable change in VA’s or court’s interpretation of a statute or regulation after RO or BVA issued decision being challenged

Three Kinds of CUE CUE in a Finding of Fact: Claimant must assert more than a disagreement as to how the facts were weighed or evaluated All of the evidence in the record as it existed at the time of the challenged adjudication must support the conclusion that the factual finding is erroneous

Three Kinds of CUE (Cont’d) CUE in a Conclusion of Law: Must show that the relevant “statutory or regulatory provisions extant at the time were incorrectly applied” A breach of the duty to assist cannot be a basis for a CUE motion

Three Kinds of CUE (Cont’d) CUE based on VA failure to sympathetically review the record to determine all claims reasonably raised by the record: File a CUE claim challenging the RO decision that should have, but failed to infer and decide the claim for benefits for a particular disability

Success in a CUE Claim Once CUE is established, the prior decision is “revised to conform to what the decision should have been” VA then has a duty to assist prior to assigning a disability evaluation for the relevant retroactive period

CAVC Review of a CUE Claim Reviews Board decisions on CUE under arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law standard Certain aspects of a CUE decision receive de novo review whether a claimant has presented a valid CUE allegation whether a law or regulation was not applied or was applied incorrectly

One Further Restriction A CUE claim cannot be brought against a final, unappealed RO decision where the BVA has subsequently reopened the claim, considered it de novo, and denied the benefits In this case the CUE claim must be lodged against the later BVA decision

TOPIC F: Attorney Representation of a VA Claimant

Admission of Attorneys to Represent VA Claimants before the VA Two Steps STEP 1: Complete and send VA Form 21a to the Office of the VA General Counsel (VAGC). When VAGC responds with initial accreditation letter → you may begin to assist a claimant on a VA claim STEP 2 TO CONTINUE ACCREDITATION: Complete three hours of approved CLE within the one-year period and then an additional three hours for every subsequent two-year period

To be Recognized by VA as the Representative of a Particular Claimant Complete, sign, and file a POA form (VA Form 21-22a) May not designate a law firm as the representative POA stays in effect until specifically revoked Generally only one representative is authorized Newest POA “constitute[s] a revocation” of old POA

Representative of a Particular Claimant (Cont’d) Split Representation Scope of the advocate’s representation may be restricted If POA not limited the VA will consider the advocate to be the representative on all of the VA claims Use VA Form 21-22a to limit the scope May cause some confusion at the VARO

Restrictions on Charging a VA Claimant a Fee Preparation of and filing a claim: No fee may be charged If an NOD is filed after June 20, 2007: Attorney may charge a reasonable fee Post-6/20/07 NOD required to charge fees for claim to reopen or claim for increase in rating Fees may be charged to prepare a CUE claim; an NOD is not a prerequisite

What is a VA Claims Folder? Once a veterans files a claim, the VA creates a “claims folder” for the veteran All submitted and VA-created materials related to ANY of the veteran’s claims for benefits are included in the veteran’s (one and only) claims folder

Obtaining the VA Claims File Claimants are entitled to one copy of their claims file at no charge Claimant and/or advocate is able to review the claims folder at the RO Best way: certify-mail a FOIA request to RO for copy of all docs in C-file w/copy of VA Form 21-22a or Privacy Act waiver Pursuant to FOIA, the VA must determine within 20 business days of receiving the request whether it will provide a copy

Obtaining the VA Claims File (Cont’d) Pursuant to FOIA, the VA must respond within 20 business days of receiving the request Advocate should treat a non-response within time period as a denial and appeal RO’s refusal to provide a copy of a claims file by certified mail to the VA Office of General Counsel in DC

How to Review a VA Claims File Preliminary advice Keeping track of relevant information Date-of-receipt stamps Initial review Read the most recent decision Check basic entitlement

How to Review a VA Claims File (Cont’d) Digging into the C file DD Form 214 Claims for benefits Lay statements Rating decisions, narrative, rating codes Notice of decision Appellate issues, Notice of Disagreement SOC and SSOCs Substantive appeal, Transcript of hearing BVA decision

How to Review a VA Claims File (Cont’d) Second review Service Medical Records (SMRs) Entrance examination Report of medical history Clinical records Military medical reports Discharge examination

How to Review a VA Claims File (Cont’d) Medical Records – In General Medical abbreviations and terminology “Impression” “Rule out” – (R/O) Handwriting issues Post-Service Medical Records VA Examination reports and QTC examinations VA outpatient (OPT) records VA Medical Center Reports (VAMC) Private Medical Reports

TOPIC G: General Advocacy Tips for Attorneys Practicing Before the VA

Navigating the VA Claims System VA work credits Bias against lawyers Instructing VA to send correspondence only to you Easy adjudications Pressure to produce by VA managers

Navigating the VA Claims System (Cont’d) Institutional bias against certain types of claims Alcohol and drug use PTSD claims TDIU claims Claims for secondary service connection Claims for delayed direct service connection Evaluation of back conditions and mental conditions Where lay evidence is used to support a factual conclusion

VA Employees How to Interact with VA Employees The last two numbers in the veteran’s claim number Decision Review Officers (DROs) - the very informal VA regional office (RO) de novo hearing Once your practice is established, if possible, ask for a meeting with the “Service Center Manager”