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VA Claims: Disabled Veterans Community|Hadit.com

Understanding Decisions from RAMP

Background

Guest Post from Hill & Ponton


RAMP (Rapid Appeals Modernization Program) is the VA’s pilot program for the new appeals system created by the VA Appeals Improvement and Modernization Act of 2017. RAMP is an optional program, available to veterans with claims that are currently on appeal. If a veteran does not want to opt into the RAMP program, they do not have to submit anything to the VA; their appeals will continue to be processed in the current appeals system now referred to as the Legacy Appeals System.

Information on RAMP Rating Decisions

Now that the RAMP program has been in effect for several months, veterans who opted in are receiving rating decisions. It is important to understand the information included in these decisions, and also what your options are if you are not happy with the decision.
The appearance of rating decisions hasn’t changed much with the RAMP program. However, the information that must be included in the rating decision has changed slightly. RAMP rating decisions must list all favorable findings that the VA identified when reviewing the case, including listing what evidence was considered as favorable. The VA must also identify the evidencethey considered to be unfavorable. In the narrative part of the rating decision, the VA must explain how the favorable and unfavorable evidence was weighed in coming to their ultimate finding. In addition to listing the evidence, the VA also has to include a list of all regulations and laws that were applied in making their decision.

Forms Included in RAMP Rating Decisions

In addition to the explanation and the list of evidence and regulations,  RAMP decisions will have two forms attached. These two forms are the RAMP Review Rights form and the RAMP Selection form.
The RAMP Review Rights form gives information about how to appeal the decision. The different ways to appeal a decision from RAMP are based on the different lanes that make up the RAMP program.  The appeal options include:

  • Supplemental Claim: If you are unhappy with the rating decision and would like to submit new evidence, this is the appeal option to select. Once the new evidence (must be new and relevant) is submitted, a different rater will review the case.
  • Higher Level Review: This appeal option can only be selected if the decision being appealed was issued out of the supplemental claim lane,  and you do not have any additional evidence to submit. (Note: if opting into RAMP, the only requirement is that no additional evidence can be submitted.) A higher-level VA employee will review the decision that is being appealed based on the evidence of record.
  • Board of Veterans’ Appeals (BVA): If you are unhappy with the rating decision and want to take your appeal straight to the BVA, use this appeal option (Note: the BVA will not begin deciding RAMP appeals until October 2018). If you choose to appeal to the Board of Veterans’ Appeals, you will have to select one of three options. These options are:
  • Direct Docket: Select this if you have no additional evidence to submit, and you do not want a hearing. The BVA will issue their decision based on the evidence of record.
  • Evidence Only Docket: Select this if you would like to submit additional evidence, but do not want a hearing. After submitting your appeal, you will have 90 days to submit additional evidence.
  • Hearing Docket: Select this if you would like to have a hearing with a Veterans Law Judge. You will also be able to submit additional evidence up to 90 days after submitting your appeal.

The second form that will be attached to a RAMP rating decision is the RAMP Selection form. After deciding which appeal option is best for you, fill out the RAMP Selection form. This form requires you to specify which issues you are appealing, and which appeal option you are choosing.

VA’s Rapid Appeals Modernization Program (RAMP)

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What is RAMP?

RAMP allows Veterans to seek faster resolution of their disagreement with VA’s decision on a disability compensation claim. Opting into RAMP means you can remove your appeal from the old, limited appeals process and enter the new, more efficient review process. In RAMP, you can choose between two new ways to have your disagreement reviewed: as a supplemental claim or via a higher-level review. VA will then provide you with a decision on your disagreement in an average of 125 days.
[/one-half-first][one-half]More on RAMP
Veterans Appeals Improvement and Modernization Act

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VA Appeals Modernization

RAMP is part of VA’s larger Appeals Modernization Program. On August 23, 2017, the President signed the Veterans Appeals Improvement and Modernization Act of 2017 (Appeals Modernization Act) into law, creating a new process that allows VA to improve the delivery of benefits and services to Veterans and their families.The Appeals Modernization Act establishes a new review process for VA claims that is timely, transparent and fair. Although the new Appeals Modernization Act process does not go into effect until February 2019, VA is giving eligible Veterans the opportunity to participate in two of the new review lanes early through RAMP.

Opting into RAMP

Now, any Veteran with an eligible disability compensation appeal may choose to opt into RAMP. To find out if your disability compensation appeal is in an eligible stage you can go to www.vets.gov and use the Appeals Status Tool. There are three ways you can opt into RAMP:

 Are you eligible for RAMP?

 Veterans who have a disability compensation appeal pending in one of the following legacy appeal stages are able to opt into RAMP:

  •  Notice of Disagreement (NOD) 
  •  Form 9, Appeal to Board of Veterans’ Appeals
  • Certified to the Board (sent to the Board but not yet formally placed on its docket)
  • Remand from the Board to VBA

What If You Disagree with a RAMP Decision?

If you disagree with a decision you received from RAMP, you can choose to have your claim reviewed again either as a higher-level review or as a supplemental claim. Choosing one review option initially does not prevent you from choosing another review option after you’ve received an initial decision in RAMP. For example, if you initially choose the Higher-Level Review Lane and disagree with VA’s decision from that review, you can then choose the Supplemental Claim Lane to add new and relevant evidence to support your claim.Alternatively, you may choose to file an NOD directly to the Board.


More on RAMP
Veterans Appeals Improvement and Modernization Act

 

Significant Judicial Precedent and Its Effect on the Board

Throughout FY 2016, the CAVC and the Federal Circuit issued many significant decisions that impacted the way VA adjudicates appeals, including the following:

Correia v. McDonald, 28 Vet. App. 158 (2016): This case provides a precedent interpretation of the final sentence of 38 C.F.R. § 4.59, which reads: “The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight- bearing and, if possible, with the range of the opposite undamaged joint.” Specifically, the CAVC held that the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The CAVC also stated that to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59.

The CAVC provided two qualifications to this requirement. First, this holding requires the range of motion testing listed in the final sentence of § 4.59 in every case in which those tests can be conducted. The CAVC specifically found that it was not competent to determine whether upper extremities are or can be weight-bearing, though it did find that knees were “undoubtedly weight-bearing.” In a later footnote, the CAVC left it to medical professionals to determine whether the listed range of motion testing can be performed on the joints at issue in a particular case. Second, range of motion testing of the opposite joint does not apply for joints that do not have an opposite or whose opposite is also damaged. While the CAVC did not define “damaged” for these purposes, it noted that both of the appellant’s knees were “damaged.” The record showed that the appellant had knee diagnoses that included both traumatic arthritis and degenerative joint disease.
This case is significant because the holding establishes additional requirements that must be met prior to finding that a VA examination is adequate. Any of the above areas of testing can be omitted if the medical professional conducting the examination states that it is not possible to perform the testing, and clearly explains why. Otherwise, VA musculoskeletal examinations that do not contain the necessary active motion, passive motion, weight-bearing information, and nonweight-bearing information are likely to be inadequate under Correia and may require remand for a new examination.

Johnson v. McDonald, 27 Vet. App. 497 (2016): In this case, the Board denied a rating in excess of 10 percent for a skin condition under 38 C.F.R. § 4.118, Diagnostic Code 7806. The Board found that the appellant did not meet the criteria for a higher rating, in part, because treatment for his skin disorder had not included systemic therapy for a duration of 6 weeks or more during any 12 month period. While the appellant had used topical corticosteroids constantly for 12 months, the Board did not find this treatment to be systemic therapy.

The question on appeal to the CAVC, was whether the criteria for a 60 percent rating under Diagnostic Code 7806, which requires “constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs,” is inclusive of topical corticosteroids. The Secretary argued that topical corticosteroid therapy is appropriately addressed under the criteria for a noncompensable rating in Diagnostic Code 7806, which applies when “no more than topical therapy [is] required.”
The CAVC determined that the language of Diagnostic Code 7806 is unambiguous: “the diagnostic code explicitly mentions corticosteroids as an example of ‘systemic therapy’ and does not further distinguish between different types of corticosteroid application.” The language in the criteria for a 60 percent rating provides that corticosteroids constitute systemic therapy without any limitation as to application, and the Board improperly added criteria not included in the rating schedule when it required systemic therapy to be more than topical. The CAVC found that the “topical therapy” identified in the noncompensable rating criteria necessarily referred to “non-corticosteroid” topical treatment. As such, the CAVC reversed the Board’s holding, and found that the appellant’s therapy was systemic.
This case is significant because any appellant using topical corticosteroids constantly or near-constantly to treat a service-connected skin disorder may now be entitled to the substantially higher 60 percent rating. Notably, this decision has resulted in a proposed regulation change that, inter alia, clarifies that systemic therapy is treatment administered through any route other than the skin (such as orally, intranasally, or via injection) and topical therapy is treatment administered through the skin. Further, the CAVC has granted a motion to stay the precedential effect of this case (except as to claimants that qualify for expedited proceedings) pending the Secretary’s appeal to the Federal Circuit.

Gagne v. McDonald, 27 Vet. App. 397 (2015): In this matter, the Board determined that VA had satisfied the duty to assist despite declining to submit requests to verify the appellant’s alleged PTSD stressors, where the appellant failed to provide a 60-day time window for the occurrence of the stressor so that VA could submit the request to the United States Army Joint Services Records Research Center (JSRRC). The appellant argued that, in light of the information in his service record and the nature of the incident to be researched (the death of a service member between August 1967 and August 1968), he presented sufficient information for Veterans Affairs to submit a verification request to the JSRRC. He also argued that despite his inability to narrow the timeframe of the alleged stressor to a specific 60 day window, it was reasonable that VA should submit multiple requests sufficient to cover the entire time period identified.

The CAVC ruled that the Board should have ordered additional development to ensure that the duty to assist was satisfied, and that the appellant had provided sufficient information to locate records. The statutory duty to assist “requires that VA ‘continue’ to try to obtain records in the possession of a government agency until such a search becomes futile.”
38 U.S.C. § 5103A(c)(2). Under 38 C.F.R. § 3.159(c)(2) “the Secretary must make as many research record requests as are necessary and that a search for records is ‘futile’ only when it becomes clear the record does not exist or is not in the possession of the custodian.” As such, VA was at least obligated to submit multiple requests to the JSRRC covering the relevant time window in 60-day increments, unless such searches are “futile” or “‘fishing expeditions’ over an indefinite period of time.”
This case is significant because VA’s duty to assist is not bound by the JSRRC’s 60-day requirement, and the fact that multiple record searches may burden JSRRC employees does not make those efforts futile. Based on the facts of this case, it is not unreasonable to require VA to submit multiple 60-day inquiries to the JSRRC sufficient to address the entire 13-month period of time identified by an appellant. As a result of this case, VBA now handles searches of periods greater than 60 days by submitting sequential requests until the entire relevant period is covered. These sequential requests require additional time for development.

Yancy v. McDonald, 27 Vet. App. 484 (2016): The CAVC vacated and remanded an August 2014 Board decision that, in pertinent part, denied entitlement to an increased rating in excess of 30 percent for bilateral pes planus, and denied entitlement to separate initial compensable ratings under two other foot DCs. In doing so, the CAVC addressed interplay of the first two elements set forth in Thun v. Peake, 22 Vet. App. 111 ( 2008); and, the application of the combined effects analysis set forth in Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014).

The CAVC explained the effect of Johnson and its application to the analysis set forth in Thun. The CAVC found that Johnson does not change the longstanding principle that the issue of whether referral for extraschedular consideration is warranted must be argued by the appellant or reasonably raised by the record. The CAVC pointed to the language in Johnson: “referral for extra-schedular evaluation may be based on the collective impact of [a] veteran’s disabilities.” Johnson, 762 F.3d at 1365 (emphasis added). Therefore, the CAVC held that the Board is required to address whether referral for extraschedular consideration is warranted for an appellant’s disabilities on a collective basis only when that issue is argued by the appellant or reasonably raised by the record through evidence of the collective impact of the appellant’s service-connected disabilities. See, e.g., Thun, 22 Vet. App. at 115; Robinson v.

►Peake, 21 Vet. App. 545, 552 (2008). The CAVC further determined that nothing in Johnson changes the Board’s obligation to conduct the Thun three-part analysis.

This case is significant because the CAVC determined that Johnson does not alter the Board’s jurisdiction over individual schedular or extraschedular ratings. Although the Board must consider any combined effects resulting from all of an appellant’s service-connected disabilities insofar as they impact the disability picture of those disabilities in appellate status, it lacks jurisdiction to consider whether referral is warranted solely for any disability or combination of disabilities that is not in appellate status, just as it lacks jurisdiction to examine the proper schedular rating for a disability not on appeal.

Robinson v. McDonald, 28 Vet. App. 178 (2016): By statute, review in the CAVC “shall be on the record of proceedings before the Secretary and the Board.” 38 U.S.C. § 7252(b). As the custodian of the records of appellants’ claims, the Secretary has been charged with the duty of assembling the record before the agency (RBA) and serving a copy on the appellant. In this particular case, as the appellant’s original paper claims file had been scanned into an electronic database prior to the Board’s decision, the Secretary assembled an RBA from the appellant’s electronic file. On appeal, the appellant contended that some pages of the pre-scan record were missing from the RBA, and demanded the opportunity to review the paper documents.

During the appeal, the Secretary explained that while some of the original paper source materials may still exist, those records do not constitute the claims file and are now considered duplicates or non-records. It was noted that the scanning of the paper documents for conversion into the electronic claims folder was completed by a third-party vendor utilizing quality control processes such that, on average, the likelihood of a paper document being accurately reproduced meets or exceeds 99 percent. Further, as a result of the quality control processes utilized by contract scanning vendors, the paper documents pertaining to the appellant were separated, digitized, sorted separately, and slated for destruction pursuant to VA’s internal procedures.
The CAVC found that VA had to provide access to the original paper records that were part of the record of proceedings before the agency. Under the CAVC’s Rule 10 (governing the RBA), the Secretary is required to provide an appellant inspection access to the “original material” before Veterans Affairs; the CAVC held that the plain meaning of that term encompassed the original paper records that had not been destroyed. The CAVC acknowledged the Federal Records Act (FRA) (44 U.S.C. Ch. 33), which includes a provision that certain digital records have the same effect as the original paper, but ultimately found thatVA had noy shown how this provision was triggered by its digitization process, without reaching any conclusions as to whether VA practices comported with the FRA. This case is significant because, with respect to claims that were processed with a paper claims file, it may require VA to maintain the paper file after all of the documents contained in the file have been uploaded into the electronic database VA uses for processing claims.

14 Questions: VA Disability Benefits Claims

14 Questions: VA Disability Benefits Claims

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When a Veteran starts considering whether or not to file a VA Disability Claim, they tend to ask many questions. Over the last ten years, the following are the 14 most common basic questions I am asked about when it comes to filing Veterans Affairs Disability Claims. [Reprinted here with permission from Veterans Law Blog

1. What benefits do you get from a VA Disability claim?

You can get several major categories of VA benefits when you file a VA Disability claim. 

  • One category is the “Non-Service Connected Pension,” available to extremely low-income veterans with disabilities. 
  • Another category is education benefits. 
  • A third category is burial benefits. 
  • A fourth category is health care benefits. 
  • And the category that is the focus of this post – and the Veterans Law Blog – is disability compensation for diseases, conditions, and disabilities that originated in military service.

(Note that you do not need to show that military service CAUSED the disability – Congress long ago recognized that Veterans should get benefits even if a disease or disability that wasn’t caused BY service has its origins IN service.

  • When it comes to a VA Disability claim for service-connected disabilities, the primary benefit is financial. Once you prove to the VA that your current medical condition, disease, or disability is related to your military service, they will assign a percentage of disability to that condition – using a complicated table and formulas. That percentage of disability translates to a monthly dollar amount. 10% equals one amount….20%, another amount, and so on and so forth.
  • You can look at the current VA Disability claim compensation amounts by clicking here (assuming the Department of Veterans Affairs hasn’t restructured their website, as they commonly do when it gets a little too easy to navigate).
  • In addition to the basic rates of compensation mentioned above, you can get additional compensation for different scenarios you raise in your VA Disability claim. 

Here are just a few:

2. How do I file a VA Disability claim?

It used to be that you could file a VA Disability claim for a service-connected condition, disease, or disability just by writing your claim on a piece of paper – a famous anecdote that floats around the Veterans’ community is the Veteran who wrote his claim on a square of toilet paper while in prison.

This is no longer the case: filing a VA Disability claim has become increasingly complicated, like many other things in this world.

Generally, filing a VA Disability claim requires a series of actions:

Step 1: Filing Phase

You can first file an informal claim for benefits using the required Veterans Affairs Form. If you formalize your claim within one year of that informal claim, the Veterans Affairs treats your informal claim as a formal claim. (You can see where this is headed. One of the things that the Veterans Law Blog works really hard to do is to show you a way to cut through all of this fog and file a VA disability claim that is more likely to get granted, award you the proper benefits, and do so in the shortest time possible.) The rules and steps get goofier and goofier as we go through the steps.

Step 2: Development Phase

You can let the Veterans Affairs develop the evidence to support your claim – officially; they have a Duty to Assist the Veteran in developing certain claims in limited situations. Or, you can be more proactive and develop your OWN claim, filing what is called a “Fully Developed Claim” for VA Benefits. Theoretically, these claims are supposed to be decided more quickly, and for the most part, they are. But by developing your own claim and using the knowledge, information, and tools I share on the Veterans Law Blog, you can set your claim up for more thorough decisions, more proper decisions, quicker decisions, and worst case scenario, if you have to appeal, a better chance at winning your claim on appeal.

Step 3: The Decision Phase

Veterans Affairs will decideC&P (Compensation & Pension) Examinermedical doctor that will decide if your diagnosed conditionhow bad your condition is, percentage-wise
denial or a grant of benefits

4 Pillars of a VA Claim:

  1. Pillar 1: Are you eligible to file a VA Disability claim for compensation benefits
  2. Pillar 2: is the medical condition – or conditions – in your VA Disability claim related to your military service? (This pillar is often called the “service connection” or “nexus” element of your VA Disability claim)
  3. Pillar 3: To what degree does your disability impair your ability to seek and hold work or engage in average daily living activities? I call this pillar the “Impairment Rating.”
  4. Pillar 4: What effective date are you entitled to (it is the effective date that governs how far back in the past your benefits will be retroactive). Some Veterans call this “back-pay” or “past-due benefits,” depending on how long you have been battling the VA. They can often go back decades. A colleague of mine just won a case for a Veteran with service connection granted all the way back to the 1950s, for example.

Step 4: The Administrative Appeal Phase

If you are not satisfied with the VA’s decision in step 3, you can appeal. The first step in the administrative appeal is optional: you can seek a review of your VA Disability Claim by a DRO (Decision Review Officer), or you can “perfect your appeal” by filing several forms in a particular sequence and on a specific timeline. You can get a review by a Veterans Law Judge (VLJ) at the BVA (Board of Veterans Appeals).

  1. You can have that review in an in-person hearing in DC, a video conference hearing from a VA facility near you, or submit a “brief” with “exhibits” and have the VLJ review your claim “on the record” before it.
        1. Deny your appeal (also known as affirming the VA Denial of your VA Disability claim);
        2. Grant your appeal (also known as reversing the VA Denial of your VA Disability claim).

Step 5: The Court Appeal Phase

Step 6: Judicial Review phase

Suppose you are not satisfied with your CAVC Decision. In that case, you have a limited opportunity for judicial review at the Federal Circuit Court of Appeals (Fed Circuit) and then the Supreme Court of the United States. The Fed Circuit only has the ability to decide PURE questions of law… I’d be willing to bet that 80-90% of Fed Circuit decisions in Board cases are “Rule 36’s”….decisions without a written opinion, typically because the Court does not have jurisdiction over the appeal.

Getting review at the Supreme Court is much harder, and appeals to both courts can be costly filing fees alone at the Federal Circuit cost $500, and the cost of copying and filing the brief and the record of proceedings below costs between $2,000 and $5,000. Hence, attorneys and Veterans tend to be more conservative about appeals to these courts.

3. When do I file a VA Disability Claim?

Ideally, you want to file your VA disability claim within the first year after leaving service. (Learn about the one VA Program I like – the Benefits at Discharge Delivery, or BDD, Program)

However, most conditions do not get diagnosed for years or decades after service. In those cases, if you are filing an original VA Disability claim (i.e., for the first time), you should file at least the informal claim mentioned above as soon as you suspect your condition is related to military service.

This protects the earliest possible effective date for your VA Disability benefits.

If you are filing a claim for increased compensation, you want to file the claim for increased rating as soon as you believe your condition is worsening.

4. Where do I file a VA Disability claim?

Technically, your VA Disability claim is filed with the VA Regional Office for your geographic area.

However, you can file your VA Disability claim online through the eBenefits portal for Veterans, or, if you want to be sure that you create a paper trail for your claim to make sure the VA does not lose it, you can file it by sending it to the Evidence Intake Center (also known as the VA’s EIC in Janesville, Wisconsin).

5. Who Can Help Me with a VA Disability Claim?

Anyone that you trust can help you with a VA Disability claim.

However, nobody can charge you a fee for filing your VA Disability claim – attorneys and accredited agents are only allowed to charge a fee for filing or helping you in your VA Disability claim after the VA has denied the claim.

So, while an illegal immigrant can hire an attorney to fight deportation whenever they can afford it, Veterans who served our country in uniform are not legally allowed to pay for an attorney or experienced professional accredited agent’s help until the VA denies them a benefit.

While a criminal charged with a crime has a constitutional right to an attorney, veterans who fought and bled to preserve the Constitution are prohibited from exercising their right to hire and pay an attorney or experienced professional until the VA screws them over first.

Some national organizations, like the Disabled American Veterans (DAV), Veterans of Foreign Wars (VFW), and the American Legion (Legion or AL), have what are called “Veteran’s service representatives” or VSOs that volunteer to help with filing initial claims. The quality of work or help you get varies widely, and I’ve seen both extremes: VSOs that do amazing work for free and VSOs that pull the rug out from under their “client” or “member.

Organizations like the Paralyzed Veterans Association (PVA) and the Vietnam Veterans of America (VVA) get consistently high marks for the work they do for their members.

6. How Long Does a VA Disability Claim Take?

The amount of time that it takes for the VA to decide on a VA Disability claim can vary greatly and depends on a lot of variables: how difficult your claim is, how many conditions you include in the VA Disability claim, how well your claim is prepared, whether your claim is a Fully Developed Claim or not, how big your VA Regional Office is, etc.

Here are some general rules:

  • If you click here, the VA says that time is 114 days (ish) for a Fully Developed Claim and 121 days (ish) for a non-FDC claim. In 10 years of representing hundreds of Veterans and talking with tens of thousands more, I’ve never met a Veteran that got a decision in 125 or fewer days. I’ve met a couple that had a decision within 3-6 months. Most Veterans should plan on the process taking about 12-18 months, from file to decision. And that’s not counting the appeals.
  • If you are bored or like looking at small numbers on mind-numbingly complicated spreadsheets, click here to see how long claims are currently taking in your geographic region. These spreadsheets are consistent with everything the VA does….hard to understand, loaded with jargon, and obvious number juggling to hide problems in the system. Pour a scotch or glass of wine.
  • Claims for VA disability benefits that are filed with smaller urban and rural VA Regional Offices are faster than VA Disability claims filed with larger metropolitan VA Regional Offices.
  • Once you file an appeal, it can take 3-10 years to get a decision, depending on variables that are too numerous to list here.
  • Veterans can speed up the timeframe by filing well-developed and well-documented Fully Developed Claims, as we teach here on the Veterans Law Blog.

7. How Do I Check the Status of My VA Disability Claim?

That, right there, is the million-dollar question.

The VA will tell you to call their VA toll-free number 1-800-827-1000 to get the status. Veterans that use this approach find that they can enjoy their favorite hobby while waiting to talk to someone at the VA: some Veterans relax and enjoy 2-3 hours of hold “muzak,” others read the week’s newspapers or a few magazines, and others have actually written a book while waiting on hold. If you are among the patient and lucky few that get through to a human being on the 1-800 line, here are some tips and pointers on how to get more value and information out of the call.

The VA also suggests that you check your status on eBenefits. Be forewarned, though – eBenefits is a glitchy and inaccurate tool. For example, if you log into my eBenefits account, it shows that the VA held a hearing on my VA Disability Claim 2 years before I filed it. That’s a true story, folks. Now that is efficiency – maybe the VA will start a new pilot program: the pre-claim denial process.

Be careful what you see on eBenefits it’s not always your claim status, it’s not always accurate, and it’s rarely up to date.

8. How Are Benefits in a VA Disability Claim Calculated?

I wish I could tell you that the VA simply added up your disability ratings from individual conditions to reach your total disability rating and paid you according to that rating.

But the VA doesn’t do it that way. They use a unique “VA Math” system to “combine” your individual disability ratings into a total. Then they award a monthly compensation amount corresponding to the resulting total impairment rating.

You can read more about impairment ratings here – Veterans have much more control over these ratings than they have been led to believe. I teach Veterans how to improve or maximize their ratings for a TON of conditions – knee/arthritissleep apneaPTSDTinnitusHearing LossFibromyalgia and Chronic FatigueGulf WarMigrainesDiabetesParkinson’s Disease, and many more!

In my 5+ hour video training course, “How to Prove the 4 Pillars of a VA Claim “, I teach Veterans how to prove the 4 Pillars of a VA Claim, including a lot of specific ways to prove the degree of disability you experience and get the highest rating possible.

9. Are VA Disability Benefits Retroactive?

Yes, they are. The question is, “how far do they go back”?

There is a whole set of rules that helps the VA decide how far back in time to go to pay retroactive benefits. These rules are called the effective date rules, and there are hundreds of them.

There are a few general guidelines; it’s not all the rules for every type of VA Disability Claim effective date, but it should give you an idea of how much you have NOT been told about VA disability benefits over the years.

  • In most VA disability claims, the effective date will be the LATER of the date you filed your claim and the date the entitlement arose. Click here to learn more about what that means.
  • If you file your VA disability claim within one year of leaving service, your effective date will typically be your date of separation from military service.
  • Claims for Increased compensation rates follow the general effective date rule, except that if you can show that the worsening of your condition started to occur BEFORE you filed your claim, you can get up to 1 year earlier.
  • In some cases, if the law changes while you are trying to prove a claim or after you’ve been denied a claim, and your claim is granted pursuant to that change in the law, that makes it easier for you to win (in other words, the change in the law is a “claim liberalizing rule”) you may be able to get up to 1 year prior to the date of your claim as your effective date.
  • Suppose you reopen a previously denied claim by submitting New and Material Evidence, and you win the reopened VA Disability claim based on military records, military service records, or military medical records that were previously unavailable to the VA or that the VA neglected to get in the prior claim. In that case, you can use the effective date rule in 38 CFR 3.156(c) to get an effective date of your original VA Disability claim date.
  • Suppose you submit New and Material evidence within one year of the date your rating decision denied your VA Disability claim. In that case, your claim is “open and pending” until the VA issues a new ratings decision. If your benefits are granted based on that new and material evidence, your effective date could be the original date of your claim. This is a dangerous path to take, though, because if the VA denies your claim because the evidence wasn’t New and Material, then you may have lost your original effective date if you did not file an appeal within that same year after the VA Ratings Decision.
  • If you are a “Nehmer Class Member,” meaning a veteran exposed to dioxin (aka, Agent Orange in Thailand, Vietnam, Korea, or other places), a whole set of effective date rules apply due to the VA’s settlement of a class action lawsuit in the 1980s. These are called the “Nehmer Rules,” and they can get pretty complicated pretty quick.
  • A survivor who files a claim for survivor benefits (DICservice connection of the cause of death and substitution, for example) will get survivor benefits retroactive to the date of the Veteran’s death if they filed their VA Form 21-534 within one (1) year of the Veteran’s death. If they file the claim for accrued benefits within that year, they may be able to get retroactive benefits paid to the date of any VA Disability claim or appeal pending on the date of the Veteran’s death.

10. Are VA Disability benefits permanent?

I’ll answer this question along with #11.

11. Are VA Disability Benefits Permanent?

Generally speaking, they can be.

If a medical condition substantially improves, the VA can propose to reduce your disability compensation benefits to different levels. The rules that they have to follow to do this can differ depending on certain factors, but here are a few considerations; you can click here to learn more about how the VA tries to pick Veterans’ pockets by reducing benefits and get an idea how to stop it.

  • The VA can only reduce “continuous ratings” (those that have been in effect for 20 years or more) after showing that they were awarded based on actual fraud by the Veteran.
  • There are three types of ratings in VA Disability claims that are considered “protected” ratings, which the VA cannot reduce without showing first a “substantial improvement” in your medical condition.
  • Suppose a VA Disability rating is considered “unprotected.” In that case, the VA can reduce it, but they have to send you notice of their intent to respond, give you an opportunity to respond and submit evidence and, if you request it, provide a hearing. The timelines on this type of reduction are pretty friendly to the VA and pretty hard for the person filing the VA Disability claim to understand, no less follow, so be ready to move quickly and do plenty of legwork to understand what is happening and how to stop it.
  • If you are incarcerated for more than 60 days, on the 61st day, the VA can reduce your VA Disability compensation to no less than 10% and must reinstate it after your release from jail. Click here to learn more about each time of rating and how long they stay in effect.

12. Are VA Disability Benefits Subject to Child Support?

Yes.

In every state I am aware of, VA Disability benefits are considered income for calculating child support.

Child support laws differ in each state, so there may be nuances from state to state how much is subject to child support, particularly when military retirement payments offset a portion of your VA Disability benefits. The best thing to do is get out ahead of this situation by talking to a local family law attorney and making sure you do right by your kids, state law, and federal law.

If you need a referral to a family law attorney in Texas or Arkansas, fill out a support ticket. I know a lot of family law attorneys in both states and may be able to give you a couple of referrals.

13. Are Benefits From My VA Disability Compensation Claim Taxable?

Nope.

At least not under Federal law. Amounts paid to Veterans or their families for education, training, subsistence allowances, clothing allowances, disability compensation, and/or pension payments are not taxable by the Feds.

As to whether these benefits are taxable at the State level, consult your state’s income tax agency, as the answer will vary state by state.

14. What Conditions Are Most Common in a VA Disability Claim?

The VA actually publishes a report of the conditions it service connects, the average ratings for each, and more. Click here to check out the report.

If you don’t have the stomach to read MORE VA propaganda – and honestly, who can blame you – here are the Top 10 conditions that the VA reports as being part of most original VA Disability Claims ((click on the links to see information published on the Veterans Law Blog about these conditions common to VA Disability claims)

Here are some other conditions that I see very frequently in many a VA Disability Claim (click on the links to see information published on the Veterans Law Blog about these conditions common to VA Disability claims)

Most Common VA Disabilities Claimed for Compensation:   

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3 Things You Want Out Of a DRO Review – VA DRO Hearings (Decision Review Officer)

[no_toc][Reprinted here with permission from Veterans Law Blog]

A de novo review is your other option. de novo, which means “new,” or “fresh look,” is a Latin term used by lawyers.  In a de novo
Veterans Law Blogreview, a DRO, who is a senior-level, highly experienced claim processor, looks at all the evidence of record (your entire claims file, including any new evidence you’ve submitted). The DRO can grant your appeal, deny your appeal and issue an SOC, or order additional development (such as a new medical exam or a request for additional medical records), if warranted.

There are DRO Conferences (informal phone calls with the DRO) and DRO Hearings (formal recorded hearings at the VA Regional Office).

3 Things You Want Out of a DRO Review.

#1 Grant of the Benefits you seek.

This is the obvious favorable outcome. The VA DRO Review concludes that the initial rater erred and that you are entitled to a full grant of all the VA Benefits you seek.

Just beware – Veterans and the VA have very different ideas about what is a “full grant”.  Veterans think a “full grant” is everything that they asked for.  The VA thinks a “Full Grant” is whatever they decided, regardless what the Veteran claimed. I’ll let you guess who is right.
The VA use of the “Full Grant of Benefits” language in just about every DRO Ratings Decision that includes a grant of some benefits is misleading, at best.

#2: Statement of the Case (SOC)

The second favorable outcome is a continued denial of the benefits sought – through the issuance of the Statement of Case
(SOC)
. (Watch the Veterans Law Blog Video on SOC’s)
Why is this favorable, you ask?  After all, you were denied.
Here’s why.
The only time you know for absolute certain that your C File is on a Rater’s desk is when ou receive a decision letter from them.
So, if you get a Statement of Case (SOC) from the VA, you know that they have your C-File on their desk – if you can turn around and submit the VA Form 9 directly to the DRO, you stand a pretty good chance of shaving 1-2 years off the time you have to wait for a BVA Hearing.
The average wait time for BVA hearings after submission of the VA Form 9 is 2 years and 3 months… if you can cut that time down by having the DRO commit to issuing a Statement of Case within 30 days of the DRO hearing, you can help to shave a bit of the wait time off your appeal.

#3: Compensation and Pension Exam (C&P)

The third favorable outcome of a VA DRO Review is to get the DRO to agree to schedule a Compensation and Pension exam.
Why is this a favorable outcome?
Because you want the VA to go “on the record” first with a Medical Opinion letter….if it’s adverse, you can get a private medical opinion to counter the VA C&P exam opinion.
Then they are “trapped” – if they get a second opinion to counter your expert, they are committing an error known as “Development to Deny”.

Here’s the Key to a VA DRO Review.

Know what outcome you want – going into the DRO Review.

Choose whether you want Option #1, Option #2, or Option #3, and then build your case and arguments accordingly.
Read how one Veteran did that in this DRO Review Case Study.
This Veteran first found out at the VA DRO Review that the VA DRO did not think his claim was on appeal. But he had a strategy going into the DRO Review, and handled the situation gracefully and really helped his claim out – even though he wasn’t expecting what he ran into.
His approach is equally applicable to other Veterans seeking a VA DRO Review.
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