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 www.va.gov) 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.