Practice Pointers from Experienced Attorneys Zachary Stolz & Amy Kretkowski

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1 Trail Angels Practice Pointers from Experienced Attorneys Zachary Stolz & Amy Kretkowski

2 Appeals Reform & RAMP

3 National Work Queue

4 Reality in the Trenches

5 Developing contacts/relationships with RO points of contact Appeals Coaches Reality in the Trenches DROs Reaching out to the RO Director, when necessary

6 The Board Decision is NOT The End. It s Just The Beginning.

7 Best Practices in the Court Read the RULES before filing. Don t clog your Rule 33 memo with legal boilerplate. Get to the point. Don t clog your Brief with legal boilerplate. Get to the point. Submit a REPLY brief. Have the final word.

8 Common Myths

9 Common Myths: You have to have an honorable discharge to get VA disability compensation benefits. (AND, the related cousin: You can t get VA disability compensation benefits if you have a dishonorable discharge.)

10 MYTH: Don t appeal just file a new claim! It s faster!

11 MYTH: File a claim for everything that happened to you in service.

12 MYTH: VA won t expedite appeals only claims.

13 MYTH: Always ask for a hearing no matter what the issue is.

14 Common Errors Factual errors Legal errors Procedural errors

15 Common Errors hypothetical Veteran files claim for SC for PTSD based on being hazed by fellow service-members. He submits his own statement and a statement from his father, describing the hazing. RO denies SC because there are no service records to corroborate the event(s). Appeal? What s your argument?

16 Common Error improper rejection of lay evidence When assessing a claim, the Board may not consider the absence of evidence as substantive negative evidence. Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011). See also AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) ( the absence of service records documenting the alleged assault is not pertinent evidence that the assault did not occur ).

17 Common Errors hypothetical Veteran files claim for SC for PTSD and submits a favorable medical opinion from his treating private psychologist. RO obtains a negative C&P opinion and denies the claim. RO rejects the favorable opinion because the private psychologist did not review the veteran s file. Appeal? What s your argument?

18 Common Error improper rejection of medical evidence VA may not prefer its own negative medical opinion over a favorable private medical opinion solely because the private examiner did not review the veteran s file. Nieves- Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008).

19 Common Errors hypothetical Vietnam Veteran files claim for SC for PTSD. RO denies the claim because there is no medical evidence of any mental health treatment in the 40 years since separation and he never filed a claim before. Appeal? What s your argument?

20 Common Error misapplication of the law A lapse in time between separation from service and postservice treatment can be a factor VA can consider but it cannot be the only reason to reject a claim. Maxson v. Gober, 230 F.3d 1330, (Fed. Cir. 2000). PTSD is by definition a delayed reaction. The amount of time between an appellant s military service and the initial claim of PTSD is immaterial. Mee v. Brown, 4 Vet.App. 220, 223 (1993).

21 Common Errors hypothetical Vietnam Veteran files claim for SC for COPD related to herbicide exposure. RO denies the claim because COPD is not on VA s list of conditions that are presumptively related to herbicide exposure. Appeal? What s your argument?

22 Common Error misapplication of the law [E]ven though a disease is not included on the list of presumptive diseases, a nexus between the disease and service may nevertheless be established on the basis of direct service connection." Polovick v. Shinseki, 23 Vet.App. 48, (2009); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

23 Common Errors hypothetical Veteran is rated 70% for PTSD, effective Jan. 1, On Jan. 5, 2017, the RO proposes to reduce his rating to 10%, based on his last evaluation where his therapist stated that he was doing much better and was able to leave his apartment at least once a week. Appeal? Why? Why not?

24 Common Error misapplication of the law Proposal is not a decision. Request a pre-determination hearing within 30 days. VA cannot reduce a rating that has been in effect for five years or more based solely on one examination. Any reduction of a stabilized rating must be based on the entire record and it must be reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R (a).

25 More Common Errors RO/Board fails to provide a medical exam. RO/Board fails to provide an adequate exam. RO/Board fails to explain its reliance on inadequate exam.

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27 Common Errors RO/Board fails to explain why it found the negative evidence more probative than the favorable evidence. (Misapplication of benefit-of-the-doubt rule.) RO/Board fails to adequately explain its adverse credibility determination. RO fails to comply with Board remand; Board fails to ensure compliance with its own remand.

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