Types of Significant VA Benefits

Transcription

1 Types of Significant VA Benefits Service-Connected Disability Benefits ( Compensation ) Non-Service-Connected Disability Pension Benefits for War-Time Veterans ( Needs Based ) Service-Connected Death Benefits for Survivors of Deceased War-Time Veterans Service-Connected Death Benefits for Survivors of Deceased Veterans ( DIC )

2 Compensation Benefits The most significant benefit administered by the VA According to the fiscal 2011 BVA annual report, 95.4% of all dispositions at the BVA involved compensation claims Not based on need or income Based on disability Requires service-connection No war-time service or low income requirements

3 Pension Needs-based program Based on disability Must have war-time service, low income, and total and permanent disability The total and permanent disability need not be connected to the veteran s period of military service Veterans aged 65 or older are presumed permanently and totally disabled for pension purposes

4 Benefits for Survivors of Deceased Veterans Accrued Benefits: a survivor is entitled to the accrued benefits "relative to the claim that was pending at the time of the veteran s death (if the veteran died after October 10, 2008 filing for substitution is preferred). Dependency and Indemnity Compensation: a qualifying survivor is entitled to a monthly benefit if the veteran s death was serviceconnected.

5 Guidance on Obtaining Compensation Obtain the claims file Benefits Understand the elements of proof and legal issues Develop evidence Submit argument Respond to VA

6 Obtain the Claims File Advocates must have the complete claims file in order to effectively represent a veteran. Make a FOIA request or submit VA Form The time to obtain a claims file can be lengthy. VA typically does not comply with the terms of the FOIA.

7 Understand the Elements of Proof The advocate must thoroughly understand how to establish service-connection and any other legal issues pertinent to the claim. The claims file should be reviewed in order to assess the evidence that may or may not exist relative to the elements of proof.

8 Developing Evidence Obtaining evidence favorable to the claim is the most important factor in effective advocacy. The advocate should determine if evidence can be obtained that addresses the missing elements of proof. In most cases, the missing evidence concerns the nexus.

9 Submit Argument Submit written argument in support of the claim. Provide the VA adjudicators with more than boilerplate statements of law. Provide a well-reasoned application of the law to the facts.

10 Respond to the VA Typically, this means to rebut the negative evidence that VA develops against the claim. Obtain any C&P exam reports and respond accordingly. This may mean additional expert opinions or arguments against the adequacy or probative value of the C&P examiner s report.

11 Tips on Filing Claims for Compensation Submit a well-developed claim. Make sure all elements of service-connection have evidentiary support Anticipate VA s common objections and address these objections in advance. E.g. negative separation exam, lengthy hiatus between discharge and diagnosis or symptom onset, intervening events, etc.

12 The BVA Decision Common errors: Failure to consider favorable evidence Reliance on inadequate medical opinions Failure to consider lay evidence Failure to consider a claim or theory Failure to ensure compliance with the duty to assist.

13 Appealing a Final BVA Denial Jurisdiction of the CAVC: Under 38 U.S.C. 7252(a) the U.S. Court of Appeals for Veterans Claims ( CAVC ) has exclusive jurisdiction to review BVA decisions.

14 CAVC Jurisdictional Requirements There must be a final decision on a claim. See 38 U.S.C. 7266(a). In practical terms, this means that an appellant cannot appeal an issue that is not the subject of a final BVA decision. A Notice of Appeal must be filed within 120 days after the BVA decision was mailed. See 38 U.S.C The Notice of Appeal must be either received or postmarked by the U.S. Postal Service within 120 days. The Notice of Appeal must contain three criteria: It must identify the BVA decision being appealed and indicate an intent to seek appellate review; It must set forth the appellant s name, address, telephone number, and VA file number. (Note: The Notice of Appeal is the only pleading that contains the appellant s VA file number.) It must be accompanied by a Notice of Appearance if it is being filed by an attorney. There must be a case or controversy. Under the case or controversy doctrine, a federal court cannot render an advisory opinion. The CAVC adheres to this doctrine as a jurisdictional predicate. See Norvell v. Peake, 22 Vet. App. 194, 201 (2008)(citing United States Parole Comm n v. Geraghty, 445 U.S. 388, 397 (1980)).

15 Exhaustion of Administrative Remedies For the Secretary to fully and sympathetically develop a veteran s claim to its optimum would require the Secretary to determine all potential claims raised by the evidence of record. Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); see also Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). Can appeal to the CAVC the VA s failure to determine an issue reasonably raised by the evidence of record. See Beverly v. Nicholson, 19 Vet. App. 394 (2005).

16 CAVC Standard of Review The CAVC will review BVA findings of fact under the clearly erroneous standard of review. This means that 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. Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990); see also Hicks v. Brown, 8 Vet. App. 417, 422 (1995)(noting that a clearly erroneous finding would be made only if all of the evidence was against the BVA s factual finding). In general, the CAVC still gives the BVA significant deference when reviewing factual findings. The CAVC will review BVA findings on non-factual issues under the arbitrary and capricious, [or] an abuse of discretion standard of review. See 38 U.S.C. 7261(a). Examples include whether the BVA erred in denying a waiver of indebtedness and whether the Secretary erred in the selection of a diagnostic code. It is important to note that the CAVC may not review favorable BVA findings of fact. See 38 U.S.C. 7261(a)(4).

17 Issues in CAVC Practice Briefing Conferences Motion Practice Briefing