THE VA AND VETERANS
More and more veterans are finding themselves at the mercy of the government after their military service. Caught up in the maze of the VA processes, the legal profession is increasingly rising to the challenge of assisting them. Especially in time of war, veterans deserve our help in obtaining that which is rightfully theirs. Those who help veterans receive the benefits they are entitled to must have tenacity and endurance. The process is complex and can take years.
- THE VA AND VETERANS
- WHAT IS COVERED: SERVICE CONNECTION
- SECONDARY CLAIMS
- VETERANS' PENSIONS - SOMETHING OTHER THAN DISABILITY
- CHARACTERISTICS OF VA BENEFICIARIES
- APPEALS BEYOND BVA
- WE CAN HELP
The Veterans Administration provides, among other things, disability benefits for veterans and their families. The U.S. has about 3½ million veterans and beneficiaries receiving compensation. In 2006 about 215,000 new beneficiaries were added to the roles. In 2007 the VA estimates that about another 800,000 claims will be filed and a similar number for 2008. These claims all start out at local offices and then wend their way through the regional and national procedures.
The Board of Veterans Appeals is the adjudicative appeals body within the VA. Appeals are an administrative agency review. The Board makes reviews that are De Novo and considers new evidence not considered at lower levels of the process.
There are at least 5 review processes. Unsatisfactory decisions may be appealed again and again to agencies like the regional office and the Board of Veterans Appeals. Most of these appeals are De Novo. Ultimately, it can be too much process and too little benefit. This process can drag on for years, prolonging the suffering of veterans and their families, often needlessly.
The VA has a great number of timeliness problems. These are likely due to the complex nature of disability decisions, staffing shortages and low productivity. The VA is also focused on quantity over quality in its decisions and processes. In 2006 the VA received 101,240 appeals notices, but only about 12,000 Board of Veterans' appeals hearings were held. The Board of Veterans appeals made a total of 39,000 decisions. Of these 19.3 percent were granted, 32 percent were remanded, 46.3 percent upheld denial and 2.4 percent had other dispositions. On average appeals resolution time (without the time associated for remand) stood at 622 days. The obvious point is VA practice is slow and the claimants are particularly needy.
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WHAT IS COVERED: SERVICE CONNECTION
In adjudicating a veteran's claim, the regional office is obligated to decide whether a veteran's problem is service-connected, i.e. it resulted from injury, disease, or it is a condition that occurred or was aggravated due to his or her service in the U.S. Military. If the problem is deemed to be service-connected, compensation is likely available, if the veteran was appropriately discharged.
A veteran is compensated in amounts based on a schedule created by the veteran system. The compensation is a function of the level of disability.
Some disabilities cannot be connected with military service because they started before the veteran was inducted. A veteran who does not have a disability identified in his induction medical report is presumed to be medically sound at the time of his entrance into the military. Similarly, if a veteran is treated while in the military for a pre-existing condition, it is presumed to have been aggravated by military service, unless the medical evidence is to the contrary.
Disability and military service must be linked; in other words, there must be nexus. Nexus can be shown by an unbreached history of symptomatology. If the claimant can show that the condition started in the service and persisted through the current day, this burden will be met. Many cancers and other life-threatening diseases associated with the use of agent orange in Vietnam require only evidence that the veteran set foot in Vietnam.
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Claimants who have service-connected problems and later have other medical problems can get benefits for the related problems if they can demonstrate that the related problems are sequelae to the original problem that occurred while the veteran was in service. There is no time limit on this process.
If a claimant can show his disability condition has become more serious, he can make a claim for increased compensation.
Veterans can get compensation for training, sports related injuries, injuries and diseases unrelated to their actions in the military, combat service, as long as the event or disease started in the military service.
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VETERANS' PENSIONS - SOMETHING OTHER THAN DISABILITY
The VA has a needs-based program to provide income to veterans who are unable to support themselves because they became disabled (whether or not in service). Even veterans older than 65 may qualify for such pension benefits. Similarly, medical expenses, including skilled nursing care, can be available.
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CHARACTERISTICS OF VA BENEFICIARIES
Most veterans receiving benefits are male in their 40's to 50's. Almost 12 percent of veterans receiving disability are African American, 5 percent Latino or Hispanic, 80 percent are in their 40s or older and 94 percent are male.
Arthritis and other bone and joint problems as well as mental health problems constitute the largest categories of disabilities. Approximately half of disabled veterans receive low compensation (below 20% disability). Claimants with 50 percent disabilities rose from 14 percent in 1955 to 24 percent in 2003. Approximately 8 percent of veterans receiving compensation in 2003 were 100 percent disabled. This is a growing percentage./p>
It is estimated that about one-third of the homeless population older than age 18 served in the armed forces. The number of Vietnam era veterans who are homeless is estimated to be more than the number of Vietnam veterans who died in the war. This is starting to happen to veterans of the Gulf War.
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After a decision has been rendered by the Board of Veterans Appeals that is unsatisfactory a veteran can appeal to the Court of Appeals for Veterans' Claims. Jurisdiction is the key. Appeals from the United States Court of Veterans' Claims are heard by the United States Court of Appeals for the Federal Circuit and from there theoretically the Supreme Court of the United States.
The United States Court of Appeals for Veterans' Claims has exclusive jurisdiction over veterans' claims, and it doesn't hear any other kind of claims. There are nine judges including two senior judges who have been recalled. The court hears cases either by a single judge or panel of three.
Cases appealed to the U.S. Court of Appeals for the Federal Circuit are always heard by panels of three Article 3 judges. This court also hears patent and trademark claims and issues of international trade.
Cases appealed from the Board of Veterans' Appeals are very often reversed. The Court of Appeals for Veterans' Claims has, on an annual basis, reversed between 6 percent and 38 percent of the appeals from the Veterans' Board of Appeals. The estimated rate of reversals by other federal courts for other kinds of matters is approximately 10 percent, consistent in each year. The VA has an unusually high rate of reversal for an administrative agency.
Once a claim is heard by the Court of Appeals for Veterans' Claims it can only be appealed to the U.S. Court of Appeals Board for the Federal Circuit.
Only claimants can bring a case to the Veterans' Court. The claimant must have been adversely affected to trigger jurisdiction. The review is of the law, not facts. At the Federal Circuit, both the veteran's authority and the veteran can bring a claim. The standard of review is error of law, there is no fact finding. The government may appeal to the federal circuit.
Both courts are interested only in error. The outcome is not an issue. Process is the name of the game. Only issues that were heard below can be heard by either of these courts. The rules for the Court of Appeals are available at the Veterans' Court website. Similarly the rules for the Federal Circuit are available at the Federal Circuit website.
Call Howard Roitman & Associates for help with your claim. We can help you assemble your case and navigate the bureaucracy to get the benefits you are entitled to. Don’t go it alone!
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