Pointman Law Group Blog

CLAIMANT’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.  

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 the Case.  

STATEMENT OF THE CASE

A Statement of the 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 the 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 the Case. 

 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 the Case, or within one year of the Notice of Action by the Regional Office denying the claim, whichever is later. 

ACTIONS 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. The Board may take anyone of four different actions in a veteran’s appeal. The Board may affirm the decision of the Regional Office. This would be an adverse decision to the veteran and would allow the veteran to appeal to the Court. The Board may reverse a decision of the Regional Office 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. The third option is for the Board to remand the case for further development to the Agency of Original Jurisdiction, the Regional Office. A remand is not an adverse decision. A remand merely continues the administrative appeal by returning a case to the Agency for further proceedings.

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. In the event that the Regional Office confirms the prior denial, the Regional Office will issue a Supplemental Statement of the Case. Following the receipt of a Supplemental Statement of the 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.

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. In this circumstance, the veteran is required to file a Notice of Disagreement 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 the Case on the omitted claim or issue. 

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. 

RECONSIDERATION 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.

If you have any questions on Veteran’s Disability Claims; please call, Send an Email or please mail us today at:

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From: Pointman Law Group.  The Offices of Eric B. Bauer, Esquire
Dan Sickman
Mike Palmer

Did you know that more than 135,000 veterans spent at least one night in a homeless shelter in 2009? That’s just one of many shocking statistics that have really opened our eyes about the challenges veterans and their families face today. We have always been generally aware of veterans’ issues, because we have 35,000 veterans who work as associates in our stores and here at The Home Depot Foundation, and an estimated 1,500 associates serving on active duty in the military. However, there is no question that statistics like this one have really made us aware of how many of the challenges veterans face actually involve housing issues. And this is The Home Depot Foundation… we can take on this issue and make an impact!

And we are… in a big way. Over the next three years, we are committing $30 million to veterans’ housing issues. Read the press release. We’re starting by supporting three great organizations: Fisher House Foundation, Volunteers of America and The Mission Continues. Fisher House Foundation provides a home-away-from-home for families staying near their loved ones who are recovering in a military or VA hospital; Volunteers of America provides housing and job training to prevent homelessness among veterans and their families; and The Mission Continues provides veterans with a way to be citizen leaders in their local communities. You can read more about each organization on our website.

But we’re not just writing a check. That grant money will stretch even further for each nonprofit organization, because associates from The Home Depot will volunteer their time and home improvement know-how skills to projects across the country. Whether it’s installing wheelchair ramps for disabled veterans or landscaping an apartment building for formerly homeless veterans, our associates will be leading the charge to serve those who have given so much for their country.

From: Pointman Law Group.  The Offices of Eric B. Bauer, Esquire
Dan Sickman
Mike Palmer
Col Dan

WASHINGTON (March 18, 2010) – Secretary of Veterans Affairs Eric K. Shinseki today announced the Department of Veterans Affairs (VA) is taking steps to make it easier for Veterans to obtain disability compensation for certain diseases associated with service in the Persian Gulf War or Afghanistan. This will be the beginning of historic change for how VA considers Gulf War Veterans’ illnesses.

 Following recommendations made by VA’s Gulf War Veterans Illnesses Task Force, VA is publishing a proposed regulation in the Federal Register that will establish new presumptions of service connection for nine specific infectious diseases associated with military service in Southwest Asia during the Persian Gulf War, or in Afghanistan on or after September 19, 2001.

“We recognize the frustrations that many Gulf War and Afghanistan Veterans and their families experience on a daily basis as they look for answers to health questions, and seek benefits from VA,” said Secretary Shinseki.

The proposed rule includes information about the long-term health effects potentially associated with the nine diseases: Brucellosis, Campylobacter jejuni, Coxiella burnetii (Q fever), malaria, Mycobacterium tuberculosis, Nontyphoid Salmonella, Shigella, Visceral leishmaniasis and West Nile virus.

 For non-presumptive conditions, a Veteran is required to provide medical evidence that can be used to establish an actual connection between military service in Southwest Asia or in Afghanistan, and a specific disease.

With the proposed rule, a Veteran will only have to show service in Southwest Asia or Afghanistan, and a current diagnosis of one of the nine diseases.

Comments on the proposed rule will be accepted over the next 60 days. A final regulation will be published after consideration of all comments received.

The decision was made after reviewing the 2006 report of the National Academy of Sciences (NAS), titled, “Gulf War and Health Volume 5: Infectious Diseases.”

The 2006 report differed from the four prior reports by looking at the long-term health effects of certain diseases determined to be pertinent to Gulf War Veterans.   The 1998 Persian Gulf War Veterans Act requires the Secretary to review NAS reports that study scientific information and possible associations between illnesses and exposure to toxic agents by Veterans who served in the Persian Gulf War.  Because the Persian Gulf War has not officially been declared ended, Veterans serving in Operation Iraqi Freedom are eligible for VA’s new presumptions. Secretary Shinseki decided to include Afghanistan Veterans in these presumptions because NAS found that the nine diseases are prevalent in that country.

 Noting that today’s proposed regulation reflects a significant determination of a positive association between service in the Persian Gulf War and certain diseases, Secretary Shinseki added, “By setting up scientifically-based presumptive service connection, we give these deserving Veterans a simple way to get the benefits they have earned in service to our country.”

 Last year, VA received more than one million claims for disability compensation and pension. VA provides compensation and pension benefits to over 3.8 million Veterans and beneficiaries. Presently, the basic monthly rate of compensation ranges from $123 to $2,673 to Veterans without any dependents.

 Disability compensation is a non-taxable, monthly monetary benefit paid to Veterans who are disabled as a result of an injury or illness that was incurred or aggravated during active military service.

 For more information about health problems associated with military service during operations Desert Shield, Desert Storm, Iraqi Freedom and Enduring Freedom and related VA programs go to www.publichealth.va.gov/exposures/gulfwar/ or go to www.va.gov for information about disability compensation.
 

James D. “Standing Horse” Cates,MSgt/USAF Retired
Chairman, National Native American Veterans Association

Only two defining forces have ever offered to die for you; Jesus Christ and the American GI.

One died for your soul; the other for your freedom.