November 2008 Nevada Lawyer
OVERVIEW OF VETERANS ADMINISTRATION DISABILITY LAW
BY HOWARD ROITMAN, ESQ.
Representing military veterans is an exceptionally difficult, yet rewarding, experience. It is an invigorating and eye-opening opportunity to help those who have done so much for us. This area of practice requires tenacity and endurance and can take years. Veterans are not easily given the benefits they are entitled to and promised. Wrestling benefits from the government is like prying gold from a dead man’s hand.
THE VA AND THE VETERAN: WHAT IS THE VA?
The Veterans Administration (VA) provides, among other things, disability benefits for veterans and their families. Obtaining these benefits can be like pulling teeth from a rattlesnake. It has been said the unofficial motto of the VA is: “delay, deny; and hope that they die.” This is unacceptable in an era during which our nation is at war. The U.S. has about 3.5 million veterans and beneficiaries receiving compensation. In 2006, about 215,000 new beneficiaries were added to the rolls. In 2007, the VA estimated that about another 800,000 claims were filed. These claims all start out at local offices and then wend their way through regional and national procedures.
The Board of Veterans’ Appeals is the adjudicative appeals body within the VA. An appeal is an administrative agency review. The board makes reviews that are de novo and considers new evidence not considered at lower levels of the process.
The veterans’ claim process oozes with due process. There are at least five review processes. Unsatisfactory decisions may be appealed again and again to agencies like the regional office and the Board of Veterans’ Appeals. Most of these appeals are de novo. Ultimately, there is too much process and too little benefit. Veterans waste decades waiting for benefits that are theirs by right or die before getting those benefits. This process can drag on for years, prolonging the suffering of veterans and their families, often needlessly.
TIMELINESS
VA disability is often compared to the Social Security process. It’s difficult to say whether VA or Social Security is more effective. The VA has a great number of timeliness problems. These are likely due to the complex nature of disability decisions, staffing shortages and low productivity. The VA is also focused on quantity over quality in its decisions and processes. In 2006 the VA received 101,240 appeals notices, but only about 12,000 Board of Veterans’ Appeals hearings were held. The Board of Veterans’ Appeals made a total of 39,000 decisions. Of these, 19.3 percent were granted, 32 percent were remanded, 46.3 percent upheld denial and 2.4 percent had other dispositions. On average, appeals resolution time (without the time associated for remand) stood at 622 days. The obvious point is, VA practice is slow and the claimants are particularly needy.
WHAT IS COVERED: SERVICE CONNECTION
In adjudicating a veteran’s claim, the regional office is obligated to decide whether a veteran’s problem is service-connected – i.e., it resulted from injury, disease or a condition that occurred or was aggravated due to his or her service in the U.S. military. If the problem is deemed to be service-connected, compensation is likely available if the veteran was appropriately discharged.
A veteran is compensated in amounts based on a schedule created by the veteran system. The compensation is a function of the level of disability.
Some disabilities cannot be connected with military service because they started before the veteran was inducted. A veteran who does not have a disability identified in his induction medical report is presumed to be medically sound at the time of his entrance into the military. Similarly, if a veteran is treated while
in the military for a pre-existing condition, it is presumed to have
been aggravated by military service unless the medical evidence
is to the contrary.
Disability and military service must be linked; in other words, there must be a nexus. Nexus can be shown by an unbreached history of symptomatology. If the claimant can show that the condition started in the service and persisted through to the current day, this burden will be met. Many cancers and other life-threatening diseases associated with the use of Agent Orange in Vietnam require only evidence that the veteran set foot in Vietnam.
SECONDARY CLAIMS
Claimants who have service-connected problems and later have other medical problems can get benefits for the related problems if they can demonstrate that the related problems are sequelae to the original problem that occurred while the veteran was in service. There is no time limit on this process.
If a claimant can show his disability condition has become more serious, he can make a claim for increased compensation. Veterans can get compensation for training, sports-related injuries, injuries and diseases unrelated to their actions in the military and combat service as long as the event or disease started while the veteran was in the service.
VETERANS’ PENSIONS: SOMETHING OTHER THAN DISABILITY
The VA has a needs-based program to provide income to veterans who are unable to support themselves because they became disabled (whether or not in service). Even veterans over the age of 65 may qualify for such pension benefits. Similarly, medical expenses, including skilled nursing care, can be made available.
CHARACTERISTICS OF VA BENEFICIARIES
Most veterans receiving benefits are males in their 40s to 50s. Almost 12 percent of veterans receiving disability are African- American, and 5 percent are Latino or Hispanic. Eighty percent are in their 40s or older and 94 percent are male. Arthritis and other bone and joint problems, as well as mental health problems, constitute the largest categories of disabilities. Approximately half of disabled veterans receive low compensation (below 20 percent disability). Claimants with 50 percent disability rose from 14 percent in 1955 to 24 percent in 2003. Approximately 8 percent of veterans receiving compensation in 2003 were 100 percent disabled. This is a growing percentage.
HOW TO HELP VETERANS
Many veterans are difficult clients, both because of the process and their living conditions. Mental illness is
not unusual. If you conduct yourself with compassion you will have more success. First, find out where in the claims process the veteran’s claim is located. The veteran is unlikely to know. Arrange to get the last decision in the process and identify all pending dates and deadlines. The claimant must sign a release so you can get the file. Ask for any other records that might be available from the claimant.
VA practice is not accustomed to lawyers working on behalf of claimants. The key to success is not to be arrogant. One reason that veterans are rejected is the way they often approach VA employees.
APPEALS BEYOND THE BOARD OF VETERANS’ APPEALS
After an unsatisfactory decision has been rendered by the Board of Veterans’ Appeals, a veteran can appeal to the Court of Appeals for Veterans Claims. Jurisdiction is the key. Appeals from the United States Court of Appeals for Veterans Claims are heard by the United States Court of Appeals for the Federal Circuit and from there, theoretically, the Supreme Court of the United States.
The United States Court of Appeals for Veterans Claims has exclusive jurisdiction over veterans’ claims, and it doesn’t hear any other kind of claim. There are nine judges, including two senior judges who have been recalled. The court hears cases either by a single judge or panel of three.
Cases appealed to the U.S. Court of Appeals for the Federal Circuit are always heard by panels of three Article 3 judges. This court also hears patent and trademark claims and issues of international trade.
Cases appealed from the Board of Veterans’ Appeals are very often reversed. The Court of Appeals for Veterans Claims has, on an annual basis, reversed between 6 percent and 38 percent of the appeals from the Board of Veterans’ Appeals. The estimated rate of reversals by other federal courts for other kinds of matters is approximately 10 percent. The VA has an unusually high rate of reversal for an administrative agency. Once a claim is heard by the Court of Appeals for Veterans Claims it can only be appealed to the U.S. Court of Appeals for the Federal Circuit.
Only claimants can bring a case to the Court of Appeals for Veterans Claims. The claimant must have been adversely affected to trigger jurisdiction. The review is of the law, not facts. At the federal circuit, both the VA and the veteran can bring a claim. The standard of review is error of law; there is no fact-finding. The government may appeal to the federal circuit. Both courts are interested only in error. The outcome is not an issue. Process is the name of the game. Only issues that were heard below can be heard by either of these courts. The rules for the Court of Appeals for Veterans Claims are available at www.vetapp.uscourts.gov. Similarly, the rules for the federal circuit are available at the federal circuit website,
Issues that keep coming up at the Veteran’s Court include the Board of Veterans’ Appeals’ failure to satisfy its duty to consider all potentially applicable laws, state the factual reasons or bases for its decisions, fulfill its duty to notify the claimant of his rights prior to a hearing, failure to conduct a medical examination where called for and failure to compel the VA to assist the veteran as required by federal law. The Veteran’s Administration generally claims that there was a plausible basis for the Board of Veterans’ Appeals’ decision and, as an administrative agency, there should be. The VA loses as many as it wins if one counts the whole process, which is very unusual for an agency, especially since many veterans are unrepresented.
CONCLUSION
More and more veterans are finding themselves caught up in the maze of the VA processes and the legal profession is increasingly rising to the challenge of assisting them. Especially in a time of war, veterans deserve our help in obtaining that which is rightfully theirs.
Howard Roitman is an attorney and mediator whose practice includes Social Security disability, estate planning and personal injury. Mr. Roitman has a J.D. & LLM from Georgetown Law, an MA from Stony Brook and is CFP, CHcF and CLU.