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Working Document • To Be Approved


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Welcome and Introduction

What You Need to Know about Veterans Disability

Appeals

Presented by Brett BuchananVA-Accredited Claims Agent


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Brett Buchanan bio

• Attended Truman State University in Kirksville, Mo., and participated in the Army ROTC program.

• Commissioned into the U.S. Army as a field artillery officer and stationed in Germany.

• Deployed in Operation Iraqi Freedom and earned a Bronze Star for combat operations.

• After the Army, attended St. Louis University School of Law.

• After graduation, assisted veterans at the VA Regional Office and Board of Veterans' Appeals.

• Became an Allsup VA-accredited Claims Agent in 2012.

• Member of the National Organization for Veterans' Advocates.


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Overview

• Department of Veterans Affairs (VA) Overview

• VA disability programs

• Basic criteria for approval of disability benefits

• Advanced criteria for approval of Compensation Benefit

• Application and appeal process

• Why veterans need help


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Department of Veterans Affairs

• The United States has authorized some type of disability benefit for veterans since the Revolutionary War.

• In 1930, various agencies were consolidated into the Veterans Administration.

• In 1989 the Department of Veterans Affairs was established as a Cabinet level position.


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Department of Veterans Affairs

• National Cemetery Administration

• Veterans Health Administration• 23 Veterans Integrated Systems Network

• Veterans Benefits Administration• 56 Regional Offices-Average 1 per state

• Texas-Waco, Houston• California-Los Angeles, Oakland, San Diego


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Veterans Benefits Administration

• Administers many benefit programs• GI Bill and dependent educational benefits• VA Home Loan • Vocational rehabilitation & employment services• Survivor benefits• Life insurance

• The focus of this presentation is the VA Compensation Benefit


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Veterans Disability Benefits

Two Disability Programs

• Disability Compensation• Service-connected disability

• Non Service Connected Pension• A needs-based program designed to

keep wartime service veterans out of poverty


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Basic Criteria for VA Pension

• Served during a war time period

• Totally disabled OR 65 years or older• Disabilities do not have to be service related.

• Income-based• Low to zero income and assets• Income offsets the approximately $1,000 a month

benefit.• Medical expenses offset income.


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Basic Criteria for VA Compensation

• Discharged or released under conditions other than dishonorable.

• Disease or injury was incurred or aggravated in the line of duty.

• The disability is not a result of their own willful misconduct or abuse of alcohol or drugs.


11Advanced Criteria for Compensation Approval

Must show a current disability that is medically related to an event or injury in service

• Current disability• In-service event or injury• Causation


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Current Disability

• Claimant must have a Disability• Current medical diagnosis• Contracting a disease or suffered an injury while on

active duty is not enough.• Pain alone is not sufficient.

• Evidence• Medical records

• Both VA and private acceptable• May get diagnosis after claim is filed or during

appeal


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Inservice Event or Injury

• The claimant must have suffered an event, disease or injury in service• Does not have to be directly related to military

duties• Must take place between military entrance and

discharge

• Evidence• Service medical records• Military personnel records • Testimony• Lay evidence such as letters, emails or media


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Causation or Nexus

• Claimant must show the current disability is caused by the event or injury in service.• Most common reason a VA claim for compensation is

not granted

• Evidence• Medical opinion• Legal presumption


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Most prevalent veteran disabilitiesVA 2013 Annual Benefits Report


16Compensation Example

Matt enlisted in the Army and was assigned to an airborne infantry unit. During one of his training airborne jumps, Matt landed on the drop zone, but a gust of wind caught his parachute.

Matt was dragged 100 yards across rough terrain, suffering neck whip lash and head trauma. The military doctors diagnosed a concussion and neck sprain. He later develops headaches after the accident and has constant pain in his neck. He completed his enlistment and was honorably discharged.

As a civilian, Matt is diagnose with a chronic headache disorder and degenerative arthritis in the neck. Matt applies for VA Compensation. The VA examiner feels Matt’s current disabilities are related to his parachute accident.

The Veteran Benefits Administration grants the claim.


17Service Connection Established: Disability Rating

• A Rating is given to each disability from 0% to 100%, in increments of 10%, based on current severity.

• Multiple ratings are combined.• 30% + 10% = 37 = 40• 30% + 10% + 10% = 43 = 40

• See 38 C.F.R. 4.25 (2013)

• Purpose: Veteran is compensated for the decreased ability to earn a living for themselves and their family.


18Disability Ratings for a Single Veteran with No Dependents

Monthly Amounts

10% = $130.9420% = $258.8330% = $400.9340% = $577.5450% = $822.1560% = $1041.3970% = $1312.4080% = $1525.5590% = $1714.34

100% = $2858.24

Annual Amounts

10% x 12 months = $1,571.28

50% x 12 months = $9,865.80

100% x 12 months = $34,298.88

2014 SSDI Avg = $13,776

SSDI + 100% VA = $48,075


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Application Process

• Written application with VA Regional Office (VARO) or online at www.ebenefits.va.gov.

• Claimant must identify all disabilities thought to be related to service.

• Claimant must provide the VA with a list of current medical providers, even if it is a VA medical center.

http://www.ebenefits.va.gov/


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Initial Decision-Rating Decision

• Regional Office will issue a Rating Decision• Explain the issues.• Discuss relevant law.• List and discuss the evidence relied on.• Provide the explanation for the decision.

• Current average processing time is 264 days.*

• One year to appeal

* 7/25/14- http://www.benefits.va.gov/REPORTS/aspire_dashboard.asp


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Notice of Disagreement

• VA Form 21-0958 or a written statement

• Express disagreement or dissatisfaction with the rating decision and request appellate review.

• Requesting reconsideration is often not enough. • May submit new evidence

• Filed with the Regional Office that issued the Rating Decision within one year.


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Decision Review Officer

• Optional second decision maker• Senior level employee at RO

• De Novo ReviewNot bound by first decision

• Must request within 60 days of RO notification of DRO review

• Can also request a personal hearing with a DRO


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Statement of the Case

• VA official notice to the claimant of its reasons for denying the claim in whole or in part

• The claimant has 60 Days or the remainder of the one year period from the date of the mailing of the Rating Decision, whichever is later to file a VA Form 9-Substantive Appeal

• Average days pending for NOD is 397*

* Monday Morning Workload Report July 21, 2014


24Appeal to Board of Veterans Appeals

• Second Appeal Form• VA Form 9

• Transfers jurisdiction of the appeal to the Board of Veterans Appeals

• If the claimant introduces evidence while the appeal is pending, the RO will issue a Supplemental Statement of the Case

• Allows the claimant to specifically address the VA’s version of the issues in dispute


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Board of Veterans Appeals

• Final VA decision maker located in Washington, D.C.• 64 Veteran Law Judges (VLJs)• Each VLJ has approximately seven staff attorneys

• 2012- 44,300 decisions• 12,334 personal hearings

• 2012- VA Form 9 to Board decision took an average of 1,040 days

• Current average day pending for VA 9s is 6,212

1- 2012 Board of Veterans Appeals Annual Report to Congress

2- Monday Morning Workload Report July 21, 2014


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Board Personal Hearings

• Personal hearing is optional

• Travel board hearing• VLJ travels to Regional Office approx. 2-3 times a

year

• Video conference hearings• VLJ in Wash. D.C., claimant is at RO

• In-person Washington, D.C. hearing• Claimant must bear the expense


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Why Appeal a VA Decision?

• Appealing a VA decision maintains the effective date of the award

• Effective Date• Date of the claim or• Date of the disability• Whichever is later

• Allowed to introduce new evidence throughout the appeal process


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Example #1• Claim submitted month one• Claim denied month 12• Claim appealed, new evidence submitted, granted

month 36• Effective date is month one, 36 months of past

due benefits

Example #2• Claim submitted month one• Claim denied month 12• Decision becomes final month 24• Claim submitted to reopen month 25 • Claim reopened and granted month 36• Effective date is month 25, 11 months of past

due benefits


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Example #1 vs Example #2

• Same disability rating awarded• Example #2 lost 24 months of past due benefits• If the rating was a 100%, then 24 months is

$66,456


30Why People Need Help Appealing a VA Decision

• An application can have many “claims”• It is not uncommon for an application to have 9-14

claimed conditions

• Confusing appeal process • Two-step appeal• Optional second decision maker• Optional personal hearings• Service connection, rating, effective date• High Board remand rate-45 percent


31Why People Need Help Appealing a VA Decision• Overwhelmed VA

• 556,000+ current pending initial claims1

• Appeals level have increased by more than 78 percent since 2008.

• Appeals can last five to seven years

• The VA breaks down the total claims inventory as follows:• Post-9/11 (Iraq and Afghanistan conflicts) claims make up 25

percent.• Gulf War (1990s conflict) claims make up 25 percent.• Peacetime (the end of Vietnam to the first Gulf War) claims

make up 11 percent.• Vietnam War claims make up 33 percent.• Korean War claims make up 3 percent.• World War II claims make up 2 percent.• Other era claims make up less than 1 percent.

1 Monday Morning Workload Report July 21, 2014



• Complex laws and regulations• New diseases and locations associated with Agent

Orange exposure• Gulf War illness • Combat veterans• Revised PTSD regulations • Total disability due to unemployability

• Medically complex issues• PTSD and other psychiatric conditions• Orthopedic conditions• Secondary issues• Cancers, cardiovascular and respiratory disease• There has been a 200 percent increase over the last

10 years in original claims containing eight or more specific medical issues, or contentions.



• Iraq/Afghanistan veterans• Traumatic brain injury and associated conditions• Women veterans• Multiple deployments

• Chemical exposure• Agent Orange list expanded• Camp Lejeune water contamination• Burn pits


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How Much Does it Cost?

• Federal law allows a fee only to be charged for services performed after a Notice of Disagreement (first appeal) is filed.

• No fee allowed at the initial level.

• The VA has deemed a 20 percent contingency fee based on the retro award to be reasonable. If the individual does not receive a retro award, no fee is due.

• The future monthly benefit is not part of the fee.• The fee is monitored by the VA’s Office of General

Counsel.


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Resources

Veterans.Allsup.com or (888) 372-1190For information on Veterans disability appeals

Use.Allsup.com or (888) 841-2126For information on Social Security Disability Insurance

• Veterans Living with Disabilities: A Closer Look at Factors Affecting the Veterans Disability Compensation Program

• Veterans with TBI May Qualify for Additional Disability Pay

• Veterans Should Review Their Disability Denials Following Study on Military Sexual Trauma Claims

• Social Security Initiative to Expedite Select Veterans’ Disability Claims for SSDI

• Raising Awareness of Military Sexual Trauma and VA Disability

https://www.allsup.com/veterans-disability/overview

https://www.allsup.com/united-spinal?sessioncode=1219

http://www.allsup.com/media/files/AVDAS-Report-for-Veterans-Day.pdf

https://www.allsup.com/Veterans-with-TBI-May-Get-Extra-Disability-Pay.aspx

https://www.allsup.com/Veterans-Should-Review-Their-Disability-Denials.aspx

https://www.allsup.com/Allsup-Highlights-Social-Security-Initiative-to-Expedite-Select-Veterans.aspx

https://www.allsup.com/allsup-place/Raising-Awareness-of-MST


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Questions?

Thank you for your service.

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