Health Care Directive and POLSTS

Joe is 45 years old and in good health.  He is about to go into the hospital for a minor procedure and his clinic asks him if he has a health care directive.  What is it and why would Joe need one?

A health care directive is a document that tells your health care workers who should make medical decisions for you if you cannot.  In Joe’s case, he chooses his wife, Jane, to be his health care “agent.”   If there is a mishap with Joe’s surgery , and he is unconscious, Jane will decide, with the doctor’s advice, between various options for Joe’s care.

Because any of us could become unable to make decisions, either temporarily, or permanently, every adult should have a health care directive.  There is no doubt that this document is the single most important estate planning document you can have.

Health Care Directives provide instructions to the person who will make medical decisions on your behalf. They are not just for deciding who will “pull the plug.”  In today’s world of medicine, there are many choices of treatment—some aggressive, others less so.  If Joe is unable to make his own decisions because he is too sick, his health care directive says who will make those decisions, including the decision of where to live.  The instructions contained in a Health Care Directive help Jane to make the kind of medical decisions that Joe would make if he were able.

Fast forward to the future—Joe is now 89 years old and suffering from Stage IV Lymphoma.   What happens when Joe collapses in his apartment?  Jane calls 911 because she is scared, but she knows that Joe would not want to be resuscitated.  What now?   If Joe had worked with his doctor and obtained a POLST (Provider Orders for Life Sustaining Treatment) and that POLST were easily available to the paramedics, those decisions would already be made and the paramedics would know whether to try CPR, or whether to intubate Joe.

POLSTs are provided only by physicians and nurse practitioners and are medical orders to other health care workers.  POLSTs are generally only for people who are approaching life’s end.  They do not replace Health Care Directives, but supplement them.  Like a Health Care Directive, photocopies and faxes of the POLST are valid.  Unlike a Health Care Directive, there is little flexibility in the POLST.  One must be even more careful and deliberate when completing a POLST than completing a Health Care Directive.

There are five sections to the POLST and 3 relate to care:

  • CPR vs. DNR
  • Goals for Treatment—comfort care to limited intervention to full intervention
  • Treatments—choices about use of antibiotics and nutrition/hydration

If there is a 911 situation, and the POLST is readily available for the paramedics, the first responders will follow the instructions of the POLST—at least in Richfield and in Minneapolis, MN.  Any care section not filled out will receive the presumption of aggressive treatment.  First responders will not take the word of a family member or other person that such a document exists—it must be provided.

What is a Trust?

According to Black’s Law Dictionary, a Trust is “A legal entity created by a grantor for the benefit of designated beneficiaries under the laws of the state and the valid trust instrument.” What that means is: think of a trust as a basket that you own. You are the ‘grantor’. The basket holds assets. The basket is the ‘legal entity.’ You use the assets for your own benefit. You are the ‘beneficiary’, and when you die, your assets go to your children; they become the beneficiaries.
So, a Trust has 3 players:
• the Grantor—the person who owns the assets put into the trust
• the Trustee—the person who manages the assets for the benefit of the beneficiaries
• the Beneficiaries—the person(s) who benefit from the assets—either by receiving the income of the trust, or by receiving the assets from the trust.
If I create a trust today, I may put my house, my bank accounts and my investments into my trust. The trust actually owns my assets now, not me directly. I can still do anything I want with my assets—reinvest, sell, or even give them away, but when I do that, I am acting as the ‘trustee’—the person who manages the trust. I am also the beneficiary of my trust—I benefit from the assets of the trust.
Say that tomorrow I suffer a massive stroke, and am unable to manage my finances. I still have my trust, but I cannot be the trustee. That job will fall to my ‘successor trustee.’ That trustee has a job to manage the assets and look after my needs, because while I am no longer the trustee, I am still the beneficiary.
If I succumb to the effects of my stroke and die, I am no longer the beneficiary of my trust—the new beneficiaries will be the people I have named when I created my trust—much like a Will says who will receive probate assets. At this point, the trust will probably terminate.
Trusts may be useful for some people because they allow (if properly created and managed) the owner to avoid probate on death. This is especially useful if real property is owned in more than one state. Trusts also maintain privacy for the family of the deceased person. Before you set up a trust, be sure to talk to an attorney who is working for your best interests. Trusts do great things, but they are not always the best answer.

Do I Need A Will?

A client (single) has beneficiaries on her retirement account, a transfer on death deed on her house, and pay on death notices on her bank accounts, her two kids get along and can amicably split up her belongings—does she also need a Will?  If this client died where all her assets were as just stated, then no, she would not need a Will.  However, like life insurance, a Will can help cover unexpected events, and the difficulties a Will can prevent may well outweigh the cost of preparing a Will.

If you own (or receive) assets that are not assigned through beneficiary then the assets are considered Probate assets.  If the value of all Probate assets is greater than $50,000, then a file with the Probate Court is required. The Will tells the Probate Court how you wish your assets distributed.

I jokingly tell my clients that a Will is for winning the lottery the day before you die.  While this is quite correct, there are other, more likely events that could trigger a probate.   Any funds that are assigned to you but not delivered until after your death, are in your estate.  An example of this is an inheritance.  If you are a beneficiary of a person’s estate, but you die before the distribution of that money takes place, a Will would help the Probate Court know how to distribute the funds.  Another scenario in which your assets may end up in Probate involves beneficiaries on your retirement or other investment accounts.  Sometimes mistakes happen –a beneficiary is not recorded correctly, accounts change and the beneficiary designation does not follow the change.  Fortunately, these are rare events, but they do happen.

Wills can also be the grounding document for your estate plan.  By listing how you want your assets distributed, you can be checking against your Will when assigning beneficiaries.  For example, say you have 5 children, and you want them to each receive 20% of your total estate when you die.  If you have investments that for some reason get distributed to only 3 of your children, you can be sure to create other investments that will be distributed to the remaining 2 children on your death.  The need for a grounding document (Will) increases with the complexity of your estate plan.

But, what if you have a trust?  A major reason for a trust is to avoid Probate.  However, just as in the above scenarios, assets can be outside your trust when you die.  In the case of a Trust, lawyers will draft what is called a “Pour-Over Trust”.  This is a simple will that states that in the event of Probate, the Personal Representative (Executor) is to follow the terms of the trust when distributing the Probate assets.

How Specific Should Your Estate Plan Be?

I have just read the associated press article…/290621711.html.  Titled:  “Robin Williams’ Family Is Feuding Over His Will”.  As one reads further into the story, it turns out that the family is not in fact at odds over his Will, but rather are seeking clarification regarding Mr. Williams’s Trust.  Be that as it may, what this short article points out is the need for clarity in an estate plan.

Personal property, the ‘things’ one owns, are generally left all to the spouse, and if the spouse is not living, then equally to the children.  Most estate plans assume well behaved children, and leave it to the children to determine who gets what. If children have trouble deciding how to split items, such books as Who Gets Grandma’s Yellow Pie Plate can be of great help.  It is seldom necessary or financially worthwhile to involve lawyers.  Seldom are items of a personal nature left to children before the spouse, and if they are, those items are usually listed specifically, with the recipient clearly indicated .

This plan of leaving items to one’s spouse then to children is contingent on the idea that everyone is of the same mind.  As soon as additional spouses (it appears from the article that Mrs. Williams was married to Robin Williams for less than 3 years), step children, or sibling animosity enters the picture, general statements in the Trust Agreement are not helpful, especially when the potential worth of such items is large.

When planning one’s own estate distribution, it is important to keep in mind the value, both market value and sentimental value, that your heirs may place on certain items, and examine realistically whether your heirs will be able to agree when the terms are vague.  This may sound as if an inventory and specific assignments are the way to go, but if your family is harmonious, not just in your mind, but in the real world, there is no need to pay for such specificity, nor to keep your inventory current.

In short, be aware that distribution of personal items can cause tension in a family, and if at your death, you have a family where all children do not have only your spouse and you as parents, think about how specific you need to be.

Cable Franchising Quasi-Judicial Best Practices in Minnesota

Many cities in the Twin Cities Metro area have been approached by CenturyLink about submitting an application for a cable franchise. While receiving an application to provide competitive cable service may be an exciting prospect, it is important to recognize that, in Minnesota, the cable franchising process is quasi-judicial and certain procedural safeguards must be followed. Council Members/Commissioners should take measures to provide adequate safeguards for the due process rights of cable franchise applicants that will appear before them.

The following is a list of aspirational “best practices” that Council Members/Commissioners should consider using in connection with cable franchising matters over which they may have decision-making authority.

• Maintain neutrality and impartiality at all times. An unbiased decision maker is required to meet the fundamental principles of due process.

• Limit ex parte (discussions outside of the public hearing) communications with the franchise applicant.

• In the event of ex parte communications with representatives of the applicant, document the communication and submit it into the official record of the public hearing.

• Keep a record of all verbal or written contacts relating to the franchise application.

• Refer questions, complaints, and information you receive on a cable franchise applicant to the department staff person responsible for the matter.

• Submit the record of contacts, along with any documents received regarding the cable franchise application, into the official record of the proceedings.

• Refrain from taking a position on the cable franchise application in community forums or elsewhere prior to the official City Council proceedings for such matters. This would include Twitter, Facebook and other social media outlets.

• Seek legal advice if you have concerns about impartiality (i.e. financial or other personal interest in the decision).

• Make quasi-judicial decisions based only on the formal record of the proceeding.

• State the factual findings and reasons that support your quasi-judicial decisions on the record at the time that you make your decision.

Mike Bradley is a partner at Bradley Hagen & Gullikson, LLC.  He has been practicing law for over 20 years and is licensed in Minnesota, Wisconsin and Washington.  Mike represents cities on cable television franchising issues.  

Municipal Competitive Franchising Process in Minnesota

Many cities/cable commissions in the Twin Cities Metro area have been approached by CenturyLink about submitting an application for a cable franchise. While receiving an application to provide competitive cable service may be an exciting prospect, it is important to recognize that, in Minnesota, the cable franchising process is quasi-judicial and certain procedural safeguards must be followed. The following is a general point of reference for interested city/commission staff and policy makers generally describing the cable franchising process.  Cities/commissions are encouraged to consult their attorneys.

State Law – Process for Additional Cable Communications Franchises

The Minnesota Cable Act, found in Minnesota Statutes Chapter 238, lays out the process for granting an additional cable franchise. Each franchising authority should also review its records to determine if it had adopted a franchising policy in previous years. Charter cities should also consult their city charters for additional requirements. The following is a summary of the franchising process found in Section 238.081:

  • Publication of Notice. A notice of intent to franchise must be published once a week for two successive weeks in a newspaper of general circulation. The statute identifies the information required in the notice.
  • Written Notice. In addition to publishing the notice of intent to franchise in one or more newspapers, a franchising authority must mail copies of the notice of intent to franchise to any person it has identified as being a potential candidate for a franchise.
  • Deadline for Application Submission. A franchising authority must allow at least 20 days from the first date of published notice for the submission of franchise proposals. In other words, the deadline for submitting franchise proposals cannot be earlier than 20 days after the date that a jurisdiction’s notice of intent to franchise was first published in a newspaper of general circulation.
  • Contents of franchising proposal. The Minnesota Cable Act requires all franchise applications be signed in front of a notary and that certain other information also be included in all franchise applications.  Additional federal law requirements should also be reviewed.
  • Public hearing on franchise. Each franchising authority must hold a public hearing before the franchising authority affording reasonable notice and a reasonable opportunity to be heard with respect to all applications for a franchise. We address the conduct of the public hearing below.
  • Award of franchise. Cable franchises may be awarded only by ordinance, after holding any necessary public hearings. A franchise may not be awarded until at least seven days after the public hearing.

FCC 90/180-Day Shot Clock

In 2007, the FCC released a Report and Order and Further Notice of Proposed Rulemaking, which was subsequently affirmed by the Sixth Circuit United States Court of Appeals and recently clarified by the FCC in an Order on Reconsideration in 2015. The Report and Order addressed how local franchising authorities could franchise new franchise applicants.

The FCC found “the current operation of the local franchising process in many jurisdictions constitutes an unreasonable barrier to entry that impedes the achievement of the interrelated federal goals of enhanced cable competition and accelerated broadband deployment.” To eliminate these alleged barriers, the FCC promulgated certain market entry rules and furnished “guidance” to cable franchise applicants and local franchising authorities in several subject areas, including the franchise application process.

The Report and Order established a 90-day deadline for acting on franchise applications submitted by an entity with existing authority to access public rights-of-way. Franchise applications for all other entities must be acted on within 180-days. These deadlines begin to run from the date that a complete application or other writing containing all the information required by FCC rules and state and/or local law is first filed with a franchising authority. Payment of a “reasonable application fee” may be required.

Federal Cable Act Considerations

The federal Cable Act does not disturb the process set forth in Minnesota law, however, it does prohibit a franchising authority from unreasonably refusing to award an additional competitive franchise.

Procedural Due Process Considerations

The Minnesota Supreme Court has held that the basic rights of procedural due process required in a hearing such as this are reasonable notice of the hearing date and a reasonable opportunity to be heard. Quasi-judicial proceedings such as this do not invoke the full panoply of procedures required in regular judicial proceedings. The rules of evidence that you would find in a regular judicial proceeding are of course not applicable in municipal public hearings.

The failure to provide adequate due process exposes a franchising authority to possible claims under 42 U.S.C. § 1983 (government deprived a person of a constitutionally protected liberty or property interest) and 42 U.S.C. § 1988 (authorization of attorney fees to the prevailing party of a section 1983 claim).

Minnesota Cable Franchising is Quasi-Judicial

In Minnesota, the consideration of a cable franchise application is quasi-judicial if it complies with the requirements of Minnesota Statutes Section 238.081. “Quasi-judicial proceedings involve an investigation into a disputed claim that weighs evidentiary facts, applies those facts to a prescribed standard, and results in a binding decision.” The franchising procedure under Minnesota law (as described above), “requires documentary evidence in the proposal and allows for testimonial evidence at the public hearing and results in a binding decision.” In most instances, to be upheld on appeal, a quasi-judicial decision must not be arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any evidence to support it.

Quasi-Judicial Municipal Best Practices

Bias of a Council Member who takes part in a quasi-judicial process may render a City’s decision as arbitrary and capricious. It is therefore critical that once a cable franchise application has been submitted, Council Members/Commissioners should take measures to provide adequate safeguards for the due process rights of cable franchise applicants that will appear before them.

In a separate post I discuss some aspirational “best practices” that Council Members and/or Commissioners should consider using in connection with quasi-judicial matters over which they may have decision-making authority.

Appeal of Additional Franchise Decision

An applicant may seek Certiorari Review by the Minnesota Court of Appeals of any quasi-judicial final action by a City/Commission. An applicant may also seek judicial review under 47 U.S.C. § 555, which may be brought in– (1) the district court of the United States for any judicial district in which the cable system is located; or (2) in any State court of general jurisdiction having jurisdiction over the parties.

Mike Bradley is a partner at Bradley Hagen & Gullikson, LLC.  He has been practicing law for over 20 years and is licensed in Minnesota, Wisconsin and Washington.  Mike represents cities on cable television franchising issues.  

Our New Waseca Office

Here is our press release announcing that we have opened a new office in Waseca, Minnesota.

Woodbury, MN (PRWEB) January 30, 2015

Mike Bradley founded Bradley Hagen & Gullikson in 1998, representing clients both locally and nationally in matters such as cable franchising and telecommunications, as well as estate planning and probate, veteran benefits, employment, business, real estate, among others.

It is only fitting that Tom Hagen call the new Waseca is home office, as he is a former Mayor of Waseca and earlier in his career, Mr. Hagen was an attorney at a Waseca law firm. He went on to work for the Minnesota Department of Commerce and is a veteran and JAG officer, having served in the Minnesota National Guard for 25 years. Mr. Hagen’s practice focuses on helping veterans with V.A. benefits. He joined the firm last year.

The firm’s partners also include Mike Bradley and Joy Gullikson, who primarily work out of the Woodbury office. In addition to starting Bradley Hagen & Gullikson, LLC, Mike Bradley founded and chaired the Military Affairs Committee of the Minnesota State Bar Association and helped to start what became one the bar’s biggest pro bono programs to help veterans. Joy Gullikson focuses her practice on elder law/estate planning. Both Tom Hagen and Joy Gullikson are accredited representative before the U.S. Department of Veterans Affairs.

Bradley Hagen & Gullikson, LLC offices are located at 1976 Woodale Drive, Suite 3A, Woodbury, MN and at 111 2nd Avenue N.E., Waseca, MN. For more information, please call (651) 379-0900 or (507) 593-4098 or visit

About Bradley Hagen & Gullikson, LLC
Bradley, Hagen and Gullikson, LLC is a well-respected legal and consulting firm that has a nationally recognized telecommunications, broadband and cable television practice. In addition to their telecommunications practice, their firm also represents individuals and businesses locally on a wide range of civil matters, including V.A. Benefits and Estate Planning.

When & Why to Hire an Attorney for your VA Disability Claim

The following information is adapted from the website of the National Organization of Veterans Advocates (NOVA).  Follow the links to learn more.

When to Hire an Attorney/Agent

A recent change in VA law now allows a veteran to hire an attorney or qualified agent once the VA’s appeals process has been initiated; that is, once a veteran has filed a Notice of Disagreement (NOD) at his or her Regional Office (RO).  Unfortunately, the change in law (see 38 U.S.C.S. § 5904) only applies to claimants who filed their NOD on or after June 20, 2007.  If the veteran filed the NOD prior to June 20, 2007, then he or she must wait until the BVA issues a final decision before hiring an attorney or agent for a fee.

Why Professional Advocacy is the Veteran’s Best Option

In short, the reason to hire an attorney or agent is because VA laws and regulations are complex and the Board of Veterans Appeals retains an attorney for every appeal.  It makes sense for a veteran to be on equal footing when their claim goes through its most precarious stage.  As of 2007, a veteran must wait some six months before receiving a decision from a VA Regional Office (VARO) regarding a claim for service-connected compensation. Then, if the veteran’s claim is denied, the appeals process at the local VARO level can take another six months to two years before it is finally forwarded to the next level of the appeals process, the Board of Veterans’ Appeals (BVA) in Washington, DC. Once there, a veteran must wait approximately two years for a decision from the BVA. Similarly, the delay at the U.S. Court of Appeals for Veterans Claims (CAVC) on average is also two years. All said, if a claim for VA benefits is denied, a veteran can spend 10 years or more waiting for VA to make the right decision.  Veterans who pursue their appeals for VA benefits without professional representation are at a severe disadvantage.

Success Rates Improve with Professional Advocacy

Veterans have many options and agencies to help assist and represent them in securing their claims. However, veterans represented by attorneys have the lowest denial rate in front of the BVA, at 17.7 percent, well below the average 24.2 percent denial rate, according to the Board of Veterans’ Appeals Annual Chairman’s Report (Fiscal Year 2011).

Veterans with attorney representation before the BVA also are among the most likely to have their appeals allowed according to the report, with a 30.1 percent success rate. Veterans who are represented by claims agents have a slightly higher success rate at 32.7 percent, but the agents were responsible for only 71 successful appeals, whereas attorneys handled 1,295 cases.

Why Hire a NOVA Attorney/Agent

At the link above, you will find a list of NOVA sustaining members by State. To be listed in our directory, these attorneys and agents must meet certain practice and training requirements.

These members:

  • MUST be actively engaged in representing claimants pursuing VA benefits, and be accredited by the Department of Veterans Affairs and/or admitted to practice at the Court of Appeals for Veterans Claims.
  • MUST agree to comply with minimum standards of practice in representation of a veteran, including a thorough review of the veteran’s claims folder and timely filing and responses to all VA and Court designated timeframes for filings, pleadings, and motions.
  • MUST attend one Continuing Legal Education (CLE) course every 24 months, which is specific to veterans’ law, and certify to NOVA the confirmation of such attendance.

Following the links in this article to learn more.

Tom Hagen is a member of NOVA and recently received a scholarship from the organization to attend their Spring 2014 Conference in Pittsburgh, Pennsylvania.

Veterans Courts Offer Alternative

First posted March 16, 2014

When I returned to private practice with Bradley & Guzzetta last fall I was asked to join the team of the 5th Judicial District Veterans Court located in Mankato, Minnesota.  This week I will attend three days of training in conjunction with the Minnesota judicial system’s Veterans’ Treatment Court Planning Initiative.  The 5th District has also selected me to attend Veteran Court Conference 2 in Los Angeles in May.  My service with the court is entirely voluntary, and I am pleased and excited to have this additional opportunity to serve America’s veterans.
So what is a Veterans Court?  These courts first began in 2008 and there are now 130 of them in 40 states.  Also known as veterans treatment courts, they are an alternative to the regular criminal justice system.  They’re meant to address the unique needs and circumstances of veterans while recognizing their service and have been very successful in the short time they have been in existence.  Veterans courts are considered “problem solving” courts and use a multi-disciplinary team of professionals to address the needs of the vets in the program while promoting sobriety and stability.  One in six Iraq and Afghanistan vets suffer from substance abuse and 81% of vets arrested have a substance abuse problem.  Since 2004, the number of vets treated for mental illness and substance abuse has increased 38%.  Simply warehousing these people as may have happened after past wars is not the answer and fails to recognize the unique circumstances of their service on our behalf.
The court is designed for U.S. military veterans charged with misdemeanor, gross misdemeanor or felony offenses who are often struggling with addiction, mental illness and/or co-occurring disorders. The goal is to promote sobriety, recovery and stability through a coordinated response that involves cooperation and collaboration with the traditional partners found in problem solving courts, with the addition of the U.S. Department of Veterans Affairs Health Care networks, the Veterans Benefits Administration, volunteer veteran mentors and veterans support organizations.  For example, the following are some of the members represented on the team:  the vet court presiding judge, probation officers, prosecutors, defense attorneys, county veterans service officers, the jail administrator, volunteer mentors, and drug and alcohol counselors.  One of the key participants is the VA justice outreach coordinator who can keep the group informed of the veteran-defendant’s upcoming VA medical appointments, etc.  Other things the court may address are health care, emergency financial assistance, chemical dependency and mental health counseling, employment and skills training assistance, temporary housing and other referral services.
So how does it work?  After a veteran is charged with a crime, either prior to or after a plea or finding of guilty, the veteran-defendant with the consent of the prosecuting attorney may be offered the option to voluntarily participate in the program.  Participation is always voluntary.  The veteran-defendant then attends veterans court on a regular basis, as often as twice a month, for the duration of their probation.  The team meets before the court session for progress updates on each veteran and addresses any current needs the veteran may have with respect to getting back on their feet.
Veterans courts appear to be working. 67% of vets in the program successfully complete their treatment and those that receive VA services experience an 88% reduction in arrests from the year before.  As VA Secretary Eric Shinseki told Veteran Conference 1 in December, “Instead of either jailing veterans who have been brought up on charges or releasing them back to the streets, you have underwritten treatment as a powerful option for dealing with those who have broken our laws.”
Tom Hagen is a 25-year member of the Minnesota National Guard where he serves as a Lieutenant Colonel and judge advocate.  He deployed to Iraq twice with Minnesota’s 34th “Red Bull” Infantry Division.  Tom is a member of the National Organization of Veterans’ Advocates and has practiced law in Minnesota since 1997.  He concentrates on helping veterans and their family members receive the benefits they deserve.

Overview: The VA Claims Process

First posted November 5, 2013

“The willingness with which our young people are likely to serve in any war, no matter how justified, shall be directly proportional as to how they perceive the Veterans of earlier wars were treated and appreciated by their country.” George Washington, 1789

“…let us…care for him who shall have borne the battle, and for his widow, and his orphan…” Abraham Lincoln, Second Inaugural Address, 1865

As demonstrated in these quotes, the mandate to care for those who have “borne the battle” has been ingrained in our National ethos since our earliest days.  I am so inspired to be contributing to this heritage by focusing a legal practice on my fellow veterans.  And I am grateful and humbled by the willingness of Bradley & Guzzetta to add this service to their practice.  In this column I’ll provide a brief summary of the VA disability claims process.  A future column will describe the lawyer’s role in this process and how, when and why to hire one.

The United States Department of Veterans Affairs (VA) administers a variety of benefits and services that provide financial and other forms of assistance to servicemembers, veterans, their dependents and survivors. One of the most common benefits is Disability Compensation (DC). Disability Compensation is a tax free monetary benefit paid to veterans with disabilities that are the result of a disease or injury incurred or aggravated during active military service (“service connected”). Compensation may also be paid for post-service disabilities that are considered related or secondary to disabilities incurred in service and for disabilities presumed to be related to circumstances of military service, even though they may arise after service. Generally, the degrees of disability specified are also designed to compensate for considerable loss of working time from exacerbations or illnesses. (See The bottom line is that veterans who can prove an illness or injury connected to or aggravated by their service may be eligible for benefits. This summary is not meant to be a detailed guide as to how to apply, or all of the details that accompany each step, detailed instructions for which can be found several places online.

VA Disability Compensation is, of course, for veterans. What is a “veteran” is not always as obvious as it may seem and is the first step in determining eligibility for DC benefits. For purposes of qualifying for benefits, the VA identifies veterans as “those individuals who served in the active military, naval, or air service, and [were] discharged or released therefrom under conditions other than dishonorable.” Again, veteran status is not always clear under this definition, but that is a topic for another post

As heard frequently in the media, the VA has a large backlog of claims and the process of applying for and receiving final determination may take several years. The steps to the claims process are as follows:

1. File a Claim. A claim can be filed at the local VA office or online. It is common for veterans to receive the assistance of their county veterans’ service office, or one of the service organizations (DAV, VFW, American Legion, etc.). A surviving dependent of a veteran may also file a claim for dependency and indemnity compensation, death pension, and accrued benefits.

2. Receive the decision.

3. If not satisfied with the decision, the applicant has one year from the date the decision is mailed to file a Notice of Disagreement (NOD). The NOD must be submitted in writing and express a desire that the matter be reviewed by the Board of Veterans Appeals (BVA). After sending a NOD, the veteran may request that an employee of the VA Regional Office, known as a Decision Review Officer (DRO), review the file. Once a NOD has been submitted, the veteran may hire an attorney to assist in the appeal.

4. After the NOD is reviewed, the VA will send the veteran a Statement of the Case (SOC), which will provide a detailed explanation of the laws, evidence, and regulations used in deciding the case. In addition, the veterans will receive a form for confirming that they still wish their appeal to go forward (VA Form 9).

5. Substantive Appeal. Using VA Form 9, the veteran provides specific reasons that he/she believes the VA decided the case incorrectly, within 60 days of the date the SOC was mailed or within one year of the date the VA mailed the original decision, whichever date is later.

6. Decision by the BVA. The BVA reviews cases in the order received. According to the National Organization of Veterans’ Advocates, as of 2011 it could take as long as 883 days for the BVA to review the appeal and make a decision. The BVA will grant the claim, deny the claim, or send it back for additional matters. The veteran’s options if the claim is denied are to try and reopen the claim at the Regional Office, ask the BVA to reconsider or review based on error, or appeal the decision to the U.S. Court of Appeals for Veterans Claims (CAVC).

7. Appeal to the CAVC. If the BVA denies a claim, an appeal can be filed with the CAVC, which has exclusive jurisdiction to review adverse decisions of the BVA. This special federal court of appeals reviews the record for error. It is not a trial court and there are no witnesses or new evidence allowed. At this point the VA is represented in the proceedings for the first time by government attorneys opposing the appeal.

Although this summary of the VA disability claim process was short, the issues can be legally complex. Questions of veterans status, connection of the veteran’s service to the injury or illness, and the disability rating derived therein represent just a few of the reasons a veteran should consider a trained advocate on their side. A future post will cover the role of an attorney in representing a veteran in the appeal process and provide a guide as to when and why to hire an attorney for the appeal.

Tom Hagen is a 24-year member of the Minnesota National Guard where he serves as a judge advocate.  He deployed to Iraq twice with Minnesota’s 34th “Red Bull” Infantry Division.  Tom is a member of the National Organization of Veterans’ Advocates and has practiced law in Minnesota since 1997.

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