*This presentation is for familiarization only and is not intended to completely cover all types of VA benefits or corresponding eligibility criteria. Additional information concerning such benefits can be located in title 38 of the United States Code and title 38 of the Code of Federal Regulations. Statements contained herein are the views of the author and do not constitute the official position of the United States, the Department of Veterans Affairs, or the United States Army.

Introduction to Introduction to Department of Veterans Affairs Department of Veterans Affairs

Programs and Benefits*Programs and Benefits*

Rachael T. BrantAttorney, Department of Veterans Affairs Office of the General Counsel

April 2, 2014

Topics of DiscussionTopics of Discussion

I. The missions of the Department of Defense (DoD) and the Department of Veterans Affairs (VA)

II. Basic eligibility for VA benefits - Status as a Veteran

III. Monetary Benefits

IV. Initiating a Claim

V. The VA Administrative Appeal Process

VI. Judicial Review

Missions of VA & DoDMissions of VA & DoD

The missions of the VA and the DoD, while related, are derived from separate statutes and regulations and are clearly distinguishable.

DoD’s mission is “to provide the military forces needed to deter war and to protect the security of our country.” (http://www.defense.gov/about/)

VA’s mission is to fulfill President Lincoln's promise “To care for him who shall have borne the battle, and for his widow, and his orphan” by serving and honoring the men and women who are America’s veterans.

Department of Veterans AffairsDepartment of Veterans Affairs

VA provides a range of benefits: •Disability compensation•Pension•Education benefits•Survivor benefits•Medical treatment•Life insurance•Vocational rehabilitation•Burial and memorial benefits

VA’s Three AdministrationsVA’s Three Administrations

Veterans Benefits Administration (VBA) • Administers VA’s monetary benefits programs.

– 2012 budget: $65.5 billion

Veterans Health Administration (VHA) • Administers VA’s health care programs.

– 2012 budget: $54.2 billion

National Cemetery Administration (NCA) • Administers VA’s burial benefits and memorialization

programs.– 2012 budget: $250 million

Locating VA Offices Online tool: Locating VA Offices Online tool: http://www1.va.gov/directory/guide/

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Veteran Status: the CornerstoneVeteran Status: the Cornerstoneof Benefits Eligibilityof Benefits Eligibility

Three requirements:

1)Type of service: “active military, naval or air service”

2)Nature of discharge: “under conditions other than dishonorable”

3)Length of service: twenty-four months or full period called to active duty (or meet an exception)

“Veteran” means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. § 101(2)

Veteran Status – Veteran Status – Points to Keep in MindPoints to Keep in Mind

• When a discharge is not “honorable” or “general, under honorable conditions,” VA decides whether it is qualifying. 38 C.F.R. § 3.12

• Person may be eligible for benefits based on a prior period of service that ended in a discharge under conditions other than dishonorable.

• A person with an administrative discharge under other than honorable conditions may still receive medical care for service-connected disabilities. Public Law 95-126; 38 C.F.R. § 3.360

How to File a Claim How to File a Claim

VA must receive a claim for VA benefits as a prerequisite to awarding or furnishing benefits. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151

Step 1: Identify the benefit(s) sought.

Step 2: Locate and complete claim form (paper or on-line) www.va.gov/vaforms/. Include copies of documents necessary to support the claim.

Step 3: File the claim with the appropriate VA office or, if appropriate, submit the claim electronically.

VA Paper ApplicationsVA Paper Applications

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VA Applications OnlineVA Applications Online

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Impact of Not Filing a ClaimImpact of Not Filing a Claim

There is no time limit on filing a VA disability benefit claim.

However, the “effective date” of benefits is generally the date of the claim if the claim is not filed within one year of service. 38 U.S.C. § 5110

Pre-Discharge Program: Claims can be filed up to 180 days prior to separation from active duty. Processing times tend to be much shorter for claims submitted pre-discharge than after discharge.

Burden of PersuasionBurden of Persuasion

A claimant for VA benefits bears the burden for presenting and supporting a claim for VA benefits. 38 U.S.C. 5107(a)

Evidentiary standard: More favorable than “preponderance of the evidence” - Where there is an approximate balance of positive and negative evidence, the “benefit of the doubt” must be resolved in favor of the claimant.

38 U.S.C. 5107(b)•Has been described like the “tie goes to the runner” rule in baseball

The Four Major VAThe Four Major VAMonetary Benefit ProgramsMonetary Benefit Programs

1. Veteran Disability Compensation

2. Veteran Pension

3. Survivor and Dependent Benefits

4. Educational Assistance (“GI Bill”)

1. VA Disability Compensation1. VA Disability Compensation

A tax-free monthly payment for a disability resulting from injury or disease that is incurred or aggravated during active service and that is not a result of the servicemember’s own willful misconduct or abuse of alcohol or drugs.

38 U.S.C §§ 1110, 1131

A finding of “service connection” requires:1. The existence of a present disability

2. An in-service incurrence or aggravation

3. A causal relationship between the present disability and the disease or injury incurred or aggravated in service.

VA Disability CompensationVA Disability Compensation

Rating claims: Once service-connected, disabilities are assigned a disability rating from 0% to 100%. The criteria for rating a particular injury or condition are found in the VA Schedule for Rating Disabilities (“Rating Schedule”).

Legal Basis for Compensation: The Rating Schedule percentages “represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations.”

38 C.F.R. § 4.1•No compensation for “pain and suffering,” or any other non-economic loss.

Calculating the Amount of Calculating the Amount of CompensationCompensation

Compensation rates change annually, but the percentages assigned under the Rating Schedule generally remain the same for a condition.

38 U.S.C. § 1114

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Modification of Compensation Modification of Compensation RatingsRatings

Ratings may be changed over time. Changes in ratings are usually based on a VA medical exam.

• Any change in rating requires notice to the claimant and other procedural rights. 38 C.F.R. § 3.103(a)

VA regulations contain provisions that encourage stability of ratings including limitations on reexaminations.

Veterans may file a claim for an increased rating at any time.

Total Disability Due toTotal Disability Due toIndividual Unemployability (TDIU)Individual Unemployability (TDIU)

A veteran rated less than 100% disabled may be paid at the 100% rate if VA finds that he or she is unemployable due to service-connected disabilities.

A veteran may raise a claim for TDIU or such claim may be implicitly raised when a pro se veteran seeking to obtain a higher disability rating presents evidence of unemployability. See Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009)

“Schedular” and “Extra-schedular” TDIU. 38 C.F.R. § 4.16

Concurrent Retirement Pay and Concurrent Retirement Pay and Disability CompensationDisability Compensation

Concurrent Receipt means receipt of both military retirement benefits and VA disability compensation.

Military retirees with 20 or more years of service and a 50% (or higher) VA-rated disability no longer have their military retirement pay reduced by the amount of their VA disability compensation (this happened over a phased-in span of time between 2004 and 2013) .

2. VA Disability Pension2. VA Disability Pension

Veterans Pension is a tax-free monetary benefit payable to low-income wartime Veterans.

Eligibility is premised on wartime service on active duty in the Armed Forces of the United States. Governed by Chapter 15 of Title 38, U.S. Code. 38 C.F.R. §§ 3.271- 3.277

VA Pension is a needs-based benefit.• Current amount for a veteran with one dependent is

$16,569/year. The amount increases with the number of dependents.

3. VA Survivor & Dependent 3. VA Survivor & Dependent BenefitsBenefits

Survivors Pension benefit: also referred to as “Death Pension,” is a tax-free monetary benefit payable to a low-income, un-remarried surviving spouse and/or unmarried child(ren) of a deceased Veteran with wartime service. A means-based benefit based on yearly family income.

Dependency and Indemnity Compensation (DIC): a tax-free monetary benefit generally payable to survivors of Servicemembers who died while on active duty, active duty for training, or inactive duty training, or to survivors of Veterans who died from their service-connected disabilities.

Accrued Benefits & SubstitutionAccrued Benefits & Substitution

“Accrued benefits” are those periodic monetary benefits which were due but unpaid at the time of the beneficiary’s death. 38 U.S.C. § 5121

Substitution: A person who could be considered an accrued benefits claimant may continue adjudication of the deceased claimant’s claim. 38 U.S.C. § 5121A•Must submit a request to substitute within one year of the original claimant’s death

4. VA Educational Benefits4. VA Educational Benefits

VA administers several programs through which veterans, servicemembers, and veterans’ survivors or dependents can pursue programs of education at various levels.

•Post-9/11 GI Bill (Ch. 33) (Effective 8/1/2009)•Montgomery GI Bill – Active Duty & Reserve (Ch. 30)•Veterans Educational Assistance Program (VEAP) (Ch. 32)

Information relating to these programs may be obtained at http://www.gibill.va.gov.

VA Claim AdjudicationVA Claim Adjudication

Eight-step claim adjudication process:

1.Claim received

2.Claim reviewed

3.Evidence gathered – VA has a “duty to assist.” VA may request evidence from the claimant, a medical professional, a government agency, etc.; But also “Fully Developed Claim” option

4.Evidence reviewed

5.Decision prepared

6.Decision reviewed and approved

7.Notification prepared

8.Decision mailed

Regional Office PhaseRegional Office Phase

Disagreement with a VA DecisionDisagreement with a VA Decision

What happens if a claimant is not satisfied with his or her decision?

•File a Notice of Disagreement (NOD) within one year•Statement of the Case (SOC) issued•File a Substantive Appeal Form (VA Form 9) within 60 days•Case heard by Board of Veterans Appeals

Disagreeing with a DecisionDisagreeing with a Decision

Notice of Disagreements (NOD)Notice of Disagreements (NOD)

A NOD must be filed within one year from the date of the mailing of the notice of the benefit determination.

If a timely NOD is not filed, the claim becomes final, thereby ending the opportunity to appeal that claim.

Statement of the Case/Statement of the Case/Additional DevelopmentAdditional Development

When a timely NOD is filed, the Agency of Original Jurisdiction (AOJ) “will take such development or review action as it deems proper under [the applicable regulations].” 38 U.S.C. § 7105(d)(1)

If the AOJ’s development or review of the matter does not result in a full grant of the benefits sought or withdrawal of the NOD, the AOJ must issue a Statement of the Case (SOC). 38 U.S.C. § 7105(d)(1)

The SOC contains an extensive description of the evidence and the basis for the decision.

Finality of Decisions Finality of Decisions

If no appeal is filed, a decision becomes final. There are only two statutorily-authorized means for re-opening or challenging a final decision:

1. Submitting new and material evidence

2. Filing a “clear and unmistakable error” (CUE) claim• “a very specific and rare kind of error.” 38 C.F.R. § 20.1403• Either: (1) The correct facts as they were known at the

time were not before the adjudicator, or (2) The law at the time was incorrectly applied; and the error was outcome determinative. Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc).

Board of Veterans’ Appeals (BVA) Board of Veterans’ Appeals (BVA) PhasePhase

The Board of Veterans’ Appeals (BVA or Board) is the VA entity responsible for deciding appeals from AOJ decisions on claims for VA benefits. It is located in Washington, D.C.

All matters falling within the scope of 38 U.S.C. § 511(a) (“Decisions of the Secretary; finality”) are subject to one review on appeal.

BVA ReviewBVA Review

Review by the BVA is “based on the entire record in the proceeding and . . . all evidence and material of record.” 38 U.S.C. § 7104(a) (de novo review).

The Board may, and often does, remand a case to the AOJ for additional development.

BVA DecisionsBVA Decisions

Each BVA decision must include:• a written statement of the BVA’s findings and

conclusions on all material issues of fact and law presented on the record,

• the reasons or bases for those findings and conclusions, and

• an order granting or denying relief.

BVA decisions provide general guidance, but are not precedential.

Finality of BVA DecisionsFinality of BVA Decisions

A Board decision is final unless:• The BVA Chairman orders reconsideration

38 U.S.C. § 7103

• The claimant appeals the decision to the U.S. Court of Appeals for Veterans Claims (Veterans Court).38 U.S.C. § 7266

• A final board decision may be revised or reversed. 38 U.S.C. § 7111

Appealing BVA DecisionsAppealing BVA Decisions

A claimant seeking to appeal a BVA decision must file his notice of appeal with the Veterans Court within 120 days after the date the Board decision was mailed. 38 U.S.C. § 7266(a)

The date stamped on the Board decision is presumed to be the date the decision was mailed.

Judicial Review of VA DecisionsJudicial Review of VA Decisions

U.S. Court of Appeals for Veterans Claims

U.S. Court of Appeal for the Federal Circuit

U.S. Supreme Court

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Appeal ProcessAppeal Process

Questions?Questions?

Rachael T. Brant

Attorney, VA Office of the General Counsel

rachael.brant@va.gov

*This presentation is for familiarization only and is not intended to completely cover all types of VA benefits or corresponding eligibility criteria. Additional information concerning such benefits can be located in title 38 of the United States Code and title 38 of the Code of Federal Regulations. Statements contained herein are the views of the author and do not constitute the official position of the United States, the Department of Veterans Affairs, or the United States Army.