Proving Sleep Apnea is Service Connected – it’s the one thing I hear more about from Veterans than any other topic.
Veterans who are looking for the “easy” way to get sleep apnea service-connected will not find it – in my opinion, there is no such thing. Like researchers that have been searching for the Holy Grail – the harder they look, the less they find.
Listen: you have got to know this: sleep Apnea is a complex medical condition, and presents differently in each and every Veteran.
While it’s not really “hard” to prove service-connection of your sleep apnea, it’s most certainly not “easy”: you are going to have to put in some “work”.
What do I mean?
You are going to have to think through your case – as objectively as you possibly can. You are going to have to get a LOT of 5-Star Evidence. And you are going to have to present it neatly and persuasively to the VA.
If I accomplish one thing in this post, it is to change the way that you think about your VA Disability Claim for sleep apnea. I don’t want you to think about the EASY path to proving Sleep Apnea is service connected.
I want you to think about the BEST Path to proving Sleep Apnea is Service Connected.
Here’s Why Most Veterans are not proving Sleep Apnea is Service Connected.
From 2013-2014, the VA and BVA denied VA benefits for sleep apnea in 76% of the appeals. Most Veterans are not proving sleep apnea is service connected. Honestly, they are just “saying” it.
Here’s what I mean – in BVA decision after BVA decision, I saw examples of Veterans that take a look at the VA Ratings Tables, see that they can get a 50% VA rating for sleep apnea with CPAP.
They then tell the VA that they have sleep apnea and a CPAP and hope that service connection for sleep apnea is granted.
Heck, I get an email or more a day from a Veteran that says this:
“My Sleep Apnea claim was not granted. I have a diagnosis and a CPAP…why aren’t they granting my claim?”
Some Veterans are taking it a little further and going to the VA with this:
“I have had problems breathing and sleeping since I was stationed near burn-pits in Iraq and now I have sleep apnea”.
Even with that little bit of extra information, almost all Veterans are still being denied service connection for sleep apnea.
What’s the VA’s Problem with Sleep Apnea?
Even as Veterans Claims for Sleep Apnea soar, it is clear that the VA DOES NOT understand the full scope of how sleep apnea occurs, medically or factually.
The VA – and frankly most of America – still thinks of Sleep Apnea as a condition for the “…obese male with a big neck.” They think – wrongly – that sleep apnea is not the kind of disability associated with a wounded warrior.
To prove that sleep apnea is service connected, the smart Veteran is going to have to connect the dots for them.
And that means you are going to have to think through your sleep apnea claim. That’s what Veteran Lee G. did – Lee’s VA claim changed when he read my Sleep Apnea book:
“Chris gave me the knowledge to file a claim for Sleep Apnea. I read his information, submitted medical documents, received a Letter of Nexus or comments from a VA contractor doctor.
My claim was approved first time submitting. I got a 50% rating. That’s $901.83 a month. And my sleep study was not done in the military.”
– Lee G., Veteran.
The BEST Path to Proving Sleep Apnea is Service Connected.
I told you at the beginning – I want to change your thinking.
I don’t want you to think about the EASY way to Service Connect Sleep Apnea anymore. I want you to think about the BEST path to proving that sleep apnea is service connected, and the BEST way to get the VA sleep apnea disability rating you are entitled to.
Here are the ingredients to a properly developed claim for sleep apnea:
*A solid foundation of Lay and Medical Evidence showing when sleep apnea first began to present in the Veteran’s life
*A good medical understanding of the unique CAUSE/ORIGIN (what doctors call etiology) of YOUR sleep apnea.
* A good Lay and Medical presentation and assessment of the sleep apnea symptoms you have had from service, or service-discharge, to the present day.
* A 5-Star medical opinion, resting on 5-Star Lay and Medical Evidence, that demonstrates HOW your Sleep Apnea is related to military service.
* 5- Star Lay and Medical Evidence that show you your VA Sleep Apnea disability affects your daily life.
Those are the ingredients. How you mix them is the hard part.
It’s one thing to give you the ingredients for a chocolate cake. It’s an entirely different thing to mix those ingredients so that they turn into a cake.
That’s what you REALLY need – you need the RECIPE for proving that sleep apnea is service connected.
4 Common Scenarios for Proving Sleep Apnea is Service Connected.
It’s no secret, I have written THE book on how to file a VA disability claim for sleep apnea.
It’s over 165 pages long, and took 9 months of research.
I read hundreds, if not thousands, of Veterans C-Files, BVA Decisions and Veterans Court Decisions. I talked to hundreds of Veterans who had been denied VA sleep apnea compensation. I talked to several doctors about the causes and limitations of sleep apnea.
And I found that MOST Veterans with Sleep Apnea claims and appeals fit into 1 of 4 common scenarios.
Scenario 1: Diagnosis of Sleep Apnea First Occurs a Long Time after Service, with no evidence of sleep-breathing problems in the Military Service, or Military Medical, records.
Scenario 2: The Veteran has a current diagnosis of sleep apnea. There is evidence of sleep breathing problems in-service, in the Veteran’s service medical records, or lay evidence of these problems during the period of military service, but no diagnosis of Sleep Apnea “in-service”.
Scenario 3: The Veteran has a diagnosis of Sleep Apnea in the Military Service Records, or during the period of service.
Scenario 4: The Veteran has one or more conditions service-connected, and is claiming that those conditions CAUSED the sleep apnea.
In my book “Put it to Rest! Your VA Sleep Apnea Claim”, I’ll give you the recipe for each of those 4 scenarios. I’ll also show you:
* The problem with your particular type of Sleep Apnea – from the VA’s perspective
* The Key Question to be resolved in EACH scenario
* Solutions to the Most Common Errors in Sleep Apnea claims
Statements: What You Need to Know and Why They are Important
Strong evidence to help support a VA disability claim is very important. Whether it is medical records, service records or service treatment records, there is no doubt that supporting evidence is required to substantiate your claim. When medical evidence is not strong enough, personal, lay and witness statements can fill in the missing pieces of the puzzle. A statement from a friend, family member, or someone you served with can be very effective when trying to establish service-connection or an increased evaluation for a service-connected condition.
Statements from friends and family members can be very powerful tools. Statements can be used to establish a nexus between a current disability and service. They can also be used to establish a stressor for PTSD in claims for service connection for PTSD. For example, if a veteran experienced a sexual assault or personal assault in service, and a friend or family member was either aware or witnessed it, they could write a statement attesting to the knowledge describing what they know or saw if there are no records to corroborate the assault. A veteran also may write their own statement explaining their experience.
Statements can also be used to help support a claim for an increased rating for a service-connected condition. These statements should focus on the veteran’s symptoms based off of what the witness has experienced with the veteran. It is always better to include as much information as possible relating to the worsening, severity, and frequency of the veteran’s symptoms. It is a good idea to review the requirements or rating schedule for that condition to see where the veteran’s symptoms fit in the rating schedule for that service-connected condition.
How do I write a statement in support of my VA Claim?
Because statements can be powerful pieces of evidence to help support a claim there a few things to keep in mind:
- Statements should be written in the witness’ own words. They should only speak to what they know what they have personally witnessed.
- Keep the statement consistent. It is very important to keep the facts of the incident or injury as consistent as possible. If there are multiple inconsistencies from the veteran or the witnesses writing the statement, the VA may try and say that the veteran and/or witness is not credible.
- Be sure to include the contact information of the witness writing the statement if the VA were to have any questions.
- The statement should state how the witness knows the veteran.
- There should always be a signature of the person writing the statement.
- It is a good idea to put the statement on a VA Form 21-4138, Statement in Support of Claim.
All in all, statements can be very helpful to your VA disability claim. Whether the VA is disputing that your injury or traumatic event occurred in service, or your medical records are not as strong as you would like them to be, you may need to consider writing a statement or having a friend or family member write one for you.
Chronic Fatigue Syndrome (CFS) is a serious chronic illness that is common with the general population and especially veterans. Studies have shown that it is more common for Gulf War Veterans compared to non-Gulf War Veterans to develop CFS, but the reason for this remains unknown. Of those who suffer from CFS, approximately one out of four will become bedridden or housebound for periods of their illness.
CFS is also known as Systemic Exertion Intolerance Disease (SEID) and Myalgic Encephalomyelitis (ME) is characterized by extreme fatigue without explanation from any other underlying condition. Symptoms can become worse with exertion by either physical or mental activity, such as going shopping and having to take a nap in the car before driving home, or staying on task at work and needing the evenings and weekends to recover, taking a shower and becoming bed bound for a couple of days afterward.
Major symptoms of Chronic Fatigue Syndrome
- Fatigue not relieved by sleep which was not always present throughout life
- Worsening of symptoms after activities. These are sometimes referred to as a crash, relapse, or collapse, and some patients can tell when they will happen.
- Problems with sleep which include not being rested after sleep or difficulty staying and/or falling asleep.
For a true diagnosis of CFS the patient must also have one of the two following symptoms:
- Thinking and memory issues such as not able to think quickly, difficulty remembering things, and unable to pay attention to details. This is described as being “foggy” by patients.
- Worsening of symptoms while sitting upright or standing, known as Orthostatic Intolerance. This may cause dizziness, weakness, fainting while standing or sitting, as well as vision becoming blurry or seeing spots.
There are other symptoms that some but not all experience:
- Muscle aches and pains.
- Joint pain without swelling or redness.
- Digestion issues like IBS.
- Chills and night sweats as well as low-grade fevers.
- Tender lymph nodes usually in the neck and underarms.
- Headaches which are new or have become worse.
- Sore throat
- Allergies or sensitivities to foods, odors, chemicals, or noise.
How is Chronic Fatigue Syndrome Diagnosed?
Diagnosis of Chronic Fatigue Syndrome can be a bit tricky and understandably so because there is no set test to make the determination. What the doctor may do is multiple tests to rule out some other underlying cause. For instance, if you complain of being tired all the time your doctor may order blood tests to check for anemia, diabetes, and hypothyroidism all of which cause fatigue. Also, to check for the cause of fatigue a doctor may order an exercise stress test to check on the function of the heart and lungs. Sleep studies can be done to rule out Obstructive Sleep Apnea (OSA) or other sleep disorders preventing restful sleep. What the doctor is trying to do is check all possible outcomes for the symptoms to make sure a clear diagnosis can be given. As the patient, this can be a stressful time, which is why it is so important to tell your doctor all the symptoms you have even if they seem silly or strange.
Is there a Cure?
Since there is no cure for CFS the treatment focuses on relief of the symptoms. Medications can be prescribed that help with depression caused by living with CFS, also low dose antidepressants have been shown to improve sleep patterns. Physical therapy can be given to help maintain and improve mobility. Joints and muscles can have a lot of pain during flare-ups, and, due to the fatigue, mobility may not be something a patient can easily do. It is common to have a range of motion (ROM) exercises, stretching a few minutes each day and steadily increase to build a tolerance. Cognitive training is important to be able to talk to someone about CFS and its limiting factors on life, and how to cope on a daily basis. Complimentary therapies such as meditation, gentle massage, deep breathing, or relaxation therapies may be beneficial to help reduce symptoms.
What Causes this Chronic Condition?
The cause of Chronic Fatigue Syndrome is unknown; however, there are a few theories as to what may cause this condition. Some people have developed CFS after having a viral infection like Epstein – Barr virus, Herpes virus 6, and mouse leukemia virus, but there has been no conclusive evidence. Most people with CFS seem to have an impaired immune system which is thought to possibly be the cause of having CFS. Another theory is a hormonal imbalance because elevated hormones are seen in the blood work of those who have CFS, but the importance of this is unknown as well. Even without a definitive cause of the disorder there are noted risk factors including being between the ages of 40-50, difficulty managing stress, and women are more commonly diagnosed (possibly because they report symptoms more often).
Living with Chronic Fatigue Syndrome can have a huge impact on a person’s life and those around them. Simple tasks that we take for granted every day may cause great exhaustion for those with CFS. This disorder can also lead to more complications like depression, social isolation, lifestyle restrictions, and an increase in absences from work/school.
Service Connecting Your Chronic Fatigue
When filing a VA Claim for Chronic Fatigue Syndrome there are specific things the VA has to see before service connection can be considered.
- New or onset of debilitating fatigue severe enough to reduce daily activity to less than 50% of the usual level for at least six months,
- History of studies and lab work showing the doctor ruled out other possible conditions that may be causing the same symptoms,
- Six or more of the following symptoms:
- Acute onset of the condition
- Low-grade fever
- Nonexudative pharyngitis (swelling of the back of the throat with no mucus)
- Tender/palpable lymph nodes (neck or underarms)
- Generalized muscle aches or weakness
- Fatigue lasting longer than 24 hours after exercise
- Migratory joint pain
- Neuropsychological symptoms (burning, numbness, tingling sensation, sensitivity)
- Sleep disturbances
If you or a loved one suffers from CFS do not be afraid to report symptoms to your doctor. This illness can be hard to diagnose due to its seemingly unrelated symptoms, but do not let that discourage you. In the U.S. it has been acknowledged that more education needs to be provided to doctors and nurses to give them the skills to detect CFS sooner for the well being of the patient. Your voice is important especially when it comes to your own health care. If you need assistance in appealing your claim for CFS, let us know here!
Long-serving troops and reservists have a little less than two months remaining to transfer their Post 9-/11 GI Bill benefits to their spouse or children before a new restriction kicks in on July 12.
While soldiers still must serve for six years before being allowed to request a GI Bill transfer, they will no longer have the opportunity to do so after they have served longer than 16 years.
This new rule will affect senior active-duty personnel and those who for whatever reason are unable to transfer any portion of their benefits to one or more dependents before that July 12 deadline.
“It’s a policy change that we knew could be implemented,” said Anthony Lowe, Veterans of Foreign Wars’ director of administration and economic opportunity. “Now it’s everyone’s responsibility to educate and inform the affected service members.”
The GI Bill transfer rules had been previously amended in 2018 so that troops with more than 10 years in uniform could no longer be excepted from a four-year service commitment if they wanted to transfer their benefits, including those who were forced into mandatory retirement.
Christopher Arendt, deputy director of accession policy in the Office of the Secretary of Defense, urged active-duty personnel approaching 16 years in uniform to make sure they are registered via the education-benefit transfer portal on MilConnect. Otherwise, they won’t be able to transfer any benefits at all.
He also advised those troops to double check that all the dependents who could potentially receive their benefits are registered as well.
“You never know which dependent is going to be the one to use it, so the registration of all applicable dependents is an important element,” Arendt said.
Lowe said that troops should transfer at least one month of benefits to eligible dependents before July 12 so they can still “transfer it back and forth after retirement and separation.” A Defense Department spokeswoman also recommended transferring at least one month of benefits to all eligible family members for that same purpose.
In addition, Lowe said that troops should contact their local military education offices and have professionals walk them through the transfer procedures so “that way they’re smart on the process.”
John Kamin, the American Legion’s assistant director of Veterans employment and education, wants soldiers to make sure they know exactly how many years they’ve served on active duty, information that becomes increasingly important to know come July 12. He also said that MilConnect can sometimes be more reliable for that than military career counselors.
“It’s important because we’ve heard stories of even retention NCOs having incorrect information on this and providing wrong advice,” he said. “Your best bet is to go straight to the source.”
Ardendt said that the Pentagon decided to enact these changes as a recruiting tactic to keep more folks who want to transfer their benefits in uniform for a few more years.
“Once you become eligible, you need to consider this as a retention benefit,” Arendt said. “This is one of those options you have when you’re getting ready to re-enlist, in order to have a benefit.”
He also said that the Pentagon estimates that transferred benefits come out to an average of $22,805 per academic year, a “pretty significant sum of money.”
Some folks on Capitol Hill and who work for Veteran-service organizations aren’t happy with the rule changes, claiming that the 16-year cap on transferring benefits feels arbitrary.
“We believe that these service members have earned the right to transfer their benefits based on years in service,” Kamin said. “The idea that serving too long can disqualify you seems absurd.”
The one DoD-enacted change that received the most positive reception was the Pentagon’s September announcement that service members wounded in combat would not be subject to that 16-year transfer limit nor would they have to commit to more service time in order to transfer their benefits.
“We are pleased that DoD was able to exclude those Purple Hearts and their ability to transfer their benefits to their dependents,” said Derek Fronabarger, the Wounded Warrior Project’s direct of legislative affairs. “That’s something that WWP advocated for and we’re happy DoD understood.”
There’s a small chance that congressional legislation might loosen these restrictions. In November, Sen. Cory Booker, D-N.J. and now a presidential candidate, introduced the Veteran Education and Transfer Extension Act, which would allow Veterans who did not have dependents when they left the military to transfer their benefits should they get married or have children later in life.
One legislator who would like to see the transfer rules at least softened is Rep. Joe Courtney, D-Conn., who wrote an op-ed for Rebootcamp last August calling the new age cap on transferring benefits “a damaging and dangerous precedent.”
“We’re all unhappy with [the decision] and criticized it,” he said recently.
Courtney said that “there’s certainly going to be some sort of amendment offered” that would either curb or end this transfer rules change at some point. For now, he urged members of the military community to call their senators and representatives and urge them to pressure the Pentagon about easing up on its transfer policies.
“[W]e’re doing our best to try to surgically focus on the most doable fix that we possibly can,” he said.
For the past five years, the VA Home Loan program has knowingly withheld $150 million in refunds for certain disabled Veterans.
A special investigation by my friends at Kare 11 exposed an internal report leaked by whistleblowers at St. Paul Regional Office. That report shows VA conducted its own audit five years ago concluding the agency was wrongfully withholding $150 million from certain Veterans.
The crux of the problem lies with the VA funding fee charged to borrowers, usually a few thousand dollars per loan. Sometimes the loan is waived based on a Veteran’s disability rating. Here, Veterans whose disability claim is pending when the loan fee is billed should receive a refund if the date of entitlement is before the loan’s closing date.
However, VA has known that since at least 2014, the agency failed to make required changes.
Here is how the VA report starts out:
The St. Paul Regional Loan Center has discovered that in the last 8 years, Veterans have been paying funding fee charges when they were exempt from the Funding Fee. This report details the circumstances surrounding what caused this to happen, suggests options to ensure this does not happen in the future. As this is going to be a large undertaking we have also provided several options to return the money to affected Veterans.
The fees associated with these loans is well over $1 billion annually.
VA Home Loan Fix
The report concludes with a solution:
We estimate that Funding Fee refunds initiated by lenders currently take approximately 20 minutes to process. Extrapolating that number over the 47,588 anticipated refunds gives us an estimated 951, 160 minutes, or nearly 16,000 hours to complete. This would be approximately 8 full time employees (FTE) for 1 year. We believe that timeframe could be cut in half if a dedicated staff is utilized and they are allowed to apply all refunds to loans that are current.
So, to recap, VA has known about the problem since 2014. Almost six years have passed since the issue was brought to the attention of senior leadership. Yet, nothing.
Just prior to publication, Kare 11 received word from VA that the agency intends to act on the report. I can assure you any failure of the agency to address this VA Home Loan scandal coming into the election will not look good for the Trump Administration.
VA To Fix Funding VA Issue
VA’s Curt Cashour issued a press release with the following excerpt:
“A major issue under review is how VA credits borrowers who, after loan closing, were awarded disability compensation with retroactive effective dates. The department is working to determine how far VA can go to provide relief, given the current restrictions of applicable laws.
“VA’s ongoing quality review looked at millions of loans dating back to 1998 originations. Since the initiative is ongoing, VA has not totaled how many borrowers might be helped by the new efforts.”
Who was responsible for initially sitting on the report without taking action?
Kare 11 points the finger at Mike Frueh, then Director of the VA Home Loan program. What happened to Frueh since 2014?
He was promoted to VBA Chief of Staff.
Here is a simple strategy to analyze your VA Voc Rehab denial despite the confusing Appeals Modernization buffet of appeals options including Higher Level Review.
Many Veterans are confused about their VA Voc Rehab denial and the next steps in analyzing your options after Appeals Modernization (February 19, 2019) – – almost as if the Veteran is walking on a ledge blindfolded.
The confusion is well earned. God knows the number of legal analysts VA hired to help create a more convoluted system than what it previously did.
Options for Veterans to appeal a denial were just increased from two to six, and with that change came an infinite number of options Veterans must consider. Luckily, despite the additional options and new decision matrix that resulted, any Voc Rehab denial usually has the starting point for any Veteran seeking to appeal.
This article provides a simple strategy for Veterans to follow when considering their options after being denied Voc Rehab benefits.
How do I know?
I have spent the past decade helping Veterans understand their Voc Rehab benefits, and five of those were as an attorney. Appellate laws may change a lot (and they have!!), but the strategy to unwind a scheming agency employee remains the same.
Look at what the counselor says. Compare it to what the counselor was supposed to say. You will usually locate the error straight away.
What I am about to say does not reflect all program employees. Many of them really care about Veterans. However, there are also many employees, including fellow Veterans, who are not following Voc Rehab’s mandate:
The purposes of this program are to provide to eligible Veterans with compensable service-connected disabilities all services and assistance necessary to enable them to achieve maximum independence in daily living and, to the maximum extent feasible, to become employable and to obtain and maintain suitable employment. 38 CFR § 21.1.
Over the past five years, many Voc Rehab Counselors have grown more conservative, sometimes even afraid, when making decisions about benefits. That fear has resulted in counselors banding together at some offices making decisions that contradict regulatory mandates.
What could it mean to enable a Veteran to achieve maximum independence in daily living AND to become employable and to obtain and maintain suitable employment TO THE MAXIMUM EXTENT FEASIBLE?
Does that mean VA counselors should never approve graduate school for any Veteran? Does that mean no Veteran should be approved for self-employment benefits? Does that mean no Veterans get more than 48 months of training?
The answer should be “No” to all of those questions, but some offices allow their counselors to issue blanket denials for certain request types without regard to a particular Veteran’s fact set.
Why is this allowed?
VA Voc Rehab Denial And Herd Mentality
Voc Rehab is a program rife with the herd mentality.
The herd mentality basically means everyone in the same organization things and says the same or similar thing, largely based on emotion rather than using logic and reason. Making it worse, some counselors believe Voc Rehab should never approve graduate-level training to include medical doctorates or related professional training.
In 2010, I wrote an article for Military.com called The Lies They Tell that I later renamed The Biggest Lies Voc Rehab Tells Veterans. There, I called out the top four lies some Voc Rehab Counselors tell Veterans, over and over. I say “some” because many counselors are great and do good work.
Those good counselors have yet to make a dent in the bad counselors or the culture that created them.
Almost a decade later, not only are those same lies being repeated, but the number of liars has seemingly increased. The only basis I can find for the consistent lies is herd mentality where the common culture supports violating the dreams of Veterans with unsupported denials.
Fortunately for you, I have catalogued the more consistent lies. And, since consistent lies are somewhat predictable, they lend themselves to the development of a strategy.
This strategy is useful for Veterans adversely affected by a denial that falls into this camp of lies or misrepresentations.
Due to fear of being undone or making errors that contradict the herd mentality, counselors err on the side of caution, at least to them, by drafting vague denial letters.
Before Appeals Modernization, many denial letters failed to mention regulations or statutes that supposedly supported the denial.
After Appeals Modernization, the denial letters are chock-full of references to statutes and regulations without actually citing them, and without a clear explanation as to why the facts presented do not form a basis for approval.
The problem with Voc Rehab’s new approach is that it fails to provide Veterans with adequate notice of the evidence evaluated or the real reason why the particular evidence does not support the request for benefits.
How The Denial Letter Should Look
Despite the vagueness, one thing is clear. Decision letters must still follow the regulatory requirements in 38 CFR § 21.420. This regulation explains what the counselor is required to put into all adverse decision letters.
A Simple Strategy
Veterans now have an infinite number of factors to consider when selecting which of the six options they appeal – – and I use the term appeal loosely now that VA relabeled its appeal process with numerous “review” options.
My step one below is the simple strategy. From there, the appeals process gets much more complicated.
Step One: Analyze The Voc Rehab Denial
Each notification should include the following list of information. The new 38 CFR § 21.420 indicates what VA “should include” rather than must, which in itself is quite curious since the lack of the following information would deprive someone of adequate notice.
Anyway, the decision letter should include the following:
(1) Identification of the issues adjudicated.
(2) A summary of the evidence considered by the Secretary.
(3) A summary of the applicable laws and regulations relevant to the decision.
(4) Identification of findings favorable to the Veteran.
(5) In the case of a denial of a claim, identification of elements not satisfied leading to the denial.
(6) An explanation of how to obtain or access evidence used in making the decision.
(7) A summary of the applicable review options available for the Veteran to seek further review of the decision.
Most decision letters are templative meaning the majority of the letter is prewritten by Regional Office leadership. It will not apply directly to the Veteran without substantive edits.
Here, VA will likely screw up its requirements under 2-5. Voc Rehab Counselors frequently fails to identify favorable findings and evidence the Veteran may present.
Odds are most Veterans will be able to identify an error.
And that is the simple strategy. Review the Voc Rehab denial letter. Compare it against the facts and evidence you know was presented to the counselor.
Frequently, Veterans will find the error within the plain language of the denial letter. Easy peazy.
That is where the simple strategy ends.
Pick The Review Or Appeal Type
Veterans have a choice between multiple types of reviews that used to simply be called the appellate process. Apparently, VA thought the term “modernization” means “complicated.”
You can choose between a Higher Level Review, Supplemental Claim, or a formal Appeal. If you pick the Appeal, you will have the choice between a hearing, providing new evidence without a hearing, or simply having a Veterans Law Judge decide the issue without additional evidence. Be sure to pick the right form… Lol.
Okay, at this point you may be saying, “Krause lied — this new appeals process sounds too complicated for a simple strategy.”
Fair enough. I will cut to the chase, but the selection process to challenge a denial complicated, so I can only give you insight into what could work based on the type of error.
If the error in question is an interpretive error regarding the law as it relates to the facts, I suggest considering a Higher Level Review (HLR). For the HLR, request a formal hearing on the record – – this is like the old DRO process – – and ask that the sister station review.
This will ensure a fresh look at the facts and argument that avoids the possible herd mentality that impacted your denial.
Basic Factual Error
If the error is a basic error of the evidence you presented, you should consider an HLR, too. This type of review will ensure that the error gets a senior look. You should request the hearing option and be ready to present the evidence, again.
If the Voc Rehab denial is maintained, then you could consider presenting additional evidence to supplement your claim in the Supplemental Claim process.
What I do not like about the Supplemental Claim option is that it allows the original counselor to make a decision on your claim. Unfortunately, if you were impacted by the herd mentality the first time, the counselor will likely double down.
If you are running into the herd, then your next best option could be to present new evidence and argument to the Board.
Now, the time for a Board hearing is still taking a while. So, the quicker option is the present new evidence and argument to the Board in writing. This should result in a speedy decision.
The unfortunate fallout of the new process is that Veterans lose their right to the agency’s duty to assist once the agency makes the first denial unless the denial was predicated on a failure to assist or some related error.
The trade-off is the quicker, but more confusing, adjudication process that can seemingly go on forever so long as you keep coming up with new evidence. Once you select one of the review options, you cannot change mid-stream but instead must wait until a new decision is rendered.
To provide feedback on the benefit of the old system… Back in the day when we used to walk to school uphill both ways, a Veteran could submit new evidence whenever it was developed.
In the new system, the Higher Level Review and one of the Board appeals lanes do not allow for new evidence. However, I am not clear how that works when you ask for a formal hearing as part of the Higher Level Review process.
The HLR is basically the program’s old Administrative Review with some new restrictions.
The new system is much more complicated than the old system. And, I can tell you the new system was not created for the purpose of making the appeal easy for Veterans, because it does the exact opposite.
This article gives you some ideas to consider when making decisions about your appeal.
The denial of home loans by the U.S. Department of Veterans Affairs (VA) to military Veterans because of work in the state-legal marijuana industry is prompting congressional action.
On Thursday, the House Appropriations Committee included language in a report attached to a 2020 VA funding bill demanding clarification on the issue:
“Home Loan Income Verification.—The Committee is aware of the Department’s denial of home loan guarantees to Veterans solely on the basis of the Veteran’s documented income being derived from state-legalized cannabis activities. The Committee is concerned that the Department has never publicly stated its position on this matter, hindering Veterans’ ability to fully understand and consider how employment decisions could affect future eligibility for earned benefits. The Committee therefore directs VA to publicly clarify its position on this matter no later than 180 days after the enactment of this Act.”
Separately, Reps. Katherine Clark (D-MA) and Julia Brownley (D-CA), the chair of the House Veterans’ Affairs Subcommittee on Health, are also currently circulating a congressional sign-on letter to VA about the issue.
“Recently, a Veteran reported that his VA home loan guarantee application was denied based on his employment in a state-legal cannabis industry. The VA’s response indicated that the Department considered the Veteran’s source of income not to be ‘stable and reliable’ enough for the purpose of mortgage applications,” the lawmakers wrote in a cover message seeking signatures from other members of Congress for the VA letter.
“Because the VA believes that this income can be forfeited or seized under federal law, they won’t deem it suitable for a VA loan,” Clark and Brownley told their colleagues in the note, which was obtained by Marijuana Moment. “The VA also explained that if VA employees were to accept this income for the purpose of a loan application, they could technically be prosecuted by DOJ for money laundering.”
The draft letter to VA Secretary Robert Wilkie, like the appropriations bill report language, presses VA to clarify its position on the issue.
“A vast majority of U.S. states have now legalized medicinal and/or recreational cannabis in some form, giving rise to a state-legal industry that generates up to $11 billion per year in sales, creates over $1 billion in state-collected excise tax revenues, and supports the livelihood of over 211,000 Americans,” the letter to the secretary says. “A substantial number of Veterans earn their livelihoods in this industry, and in coming years, that number is likely to further rise.”
“The VA must acknowledge this reality and ensure Veterans who work in this sector are able to clearly understand and can equitably access the benefits they’ve earned.”
“The ambiguity under which the cannabis industry operates is unique, and we fully understand the VA’s resulting aversion to legal and financial risk,” the draft letter to Wilkie states. “Denying Veterans the benefits they’ve earned, however, is contrary to the intent Congress separately demonstrated in its creation of VA benefit programs.”
While VA has provided guidance on certain related matters such as a clarification that Veterans will not lose their VA benefits just for using cannabis and specifying that the department’s physicians can discuss marijuana usage with patients but not issue formal recommendation for medical cannabis, the department hasn’t put anything in writing concerning housing loan qualifications for Veterans who work in the marijuana market, at least not publicly.
“Yet, the VA has not issued any policies or guidance on this topic, leaving Veterans with no way to clearly and readily understand whether their choice of legal employment in this industry could result in the denial of benefits they’ve earned,” the letter says.
“We ask that you reply in the next 30 days detailing the Department’s position on loan guarantees, and that to the extent practicable, you also include information about whether a Veteran’s eligibility for any other specific VA benefit is jeopardized solely on the basis of their employment in a legal cannabis industry in a given state. We also request that your reply include an assurance that you will begin the process of issuing guidance to publicly clarify the VA’s position on this matter.”
Separately, the House Appropriations Committee report attached to the VA funding bill also includes a section demanding VA explain its efforts to conduct research on marijuana’s therapeutic benefits for Veterans:
“Cannabis Research.—The Committee recognizes that continued focus on the discovery of treatment alternatives for Veterans diagnosed with various conditions, such as chronic pain and PTSD, is essential to reducing the number of Veteran suicides. For this reason, the Energy and Water, Legislative Branch, and Military Construction and Veterans Affairs Appropriations Act, 2019 (P.L. 115– 244) urged VA to utilize funds to prioritize investments in research on the efficacy and safety of cannabis usage among the Veteran population for medicinal purposes and submit a report to the Committee no later than 180 days after enactment of that Act. The report has yet to be submitted to the Committee, therefore the Committee directs VA to provide a status update of this outstanding report no later than 15 days after the report is filed.”
Similar language was included in a report from the same committee last year, but VA apparently has not complied with the prior request to issue a report to Congress on the matter.
Veterans and cannabis issues have been front and center in the 116th Congress, with three pieces of related legislation having been discussed at a House Veterans subcommittee hearing in April. Two of those bills were set to get a full committee vote on Wednesday, but they were pulled from the agenda after the chairman decided to instead hold a yet-to-be-scheduled hearing focused specifically on the marijuana proposals.
From 2010 through 2016, the Veterans Benefits Administration spent $65 billion on educational benefits for 1.6 million Veterans, spouses and children, mostly for Veterans’ tuition, fees, and housing. In 2016, VBA spent an average of $17,400 per beneficiary.
Beginning August 1, 2009, the Post-9/11 GI Bill extended educational benefits to service members who were on active duty in the military on or after September 11, 2001. This GI Bill (officially the Post- 9/11 Veterans Educational Assistance Act of 2008), the latest version of a law that helps Veterans pay for higher education, provides more extensive benefits than have ever been offered to current and former service members, enabling them to transfer its benefits to certain family members and to enroll in a wide array of educational and training programs. In March 2019, the Department of Veterans Affairs (VA) reported that in 2018 it spent about $10.7 billion on 700,000 beneficiaries of the Post-9/11 GI Bill.
At the request of the House Budget Committee, the Congressional Budget Office analyzed data from VA to understand the law’s cost, the types of educational programs beneficiaries enrolled in, and the institutions they attended. CBO also reviewed research related to some of the law’s stated purposes, such as motivating people to join or stay in the military and using the educational benefits as part of readjusting to civilian life. This analysis primarily describes spending in 2016, with some information from 2017 and some historical data from 2009 onward.
What Benefits Does the Post-9/11 GI Bill Offer?
The Post-9/11 GI Bill is more generous than earlier GI bills. Beneficiaries are eligible for 36 months of postsecondary education, including full tuition and fees at public colleges and universities (or up to $23,672 for the 2018–2019 academic year toward tuition and fees at private schools), as well as a housing allowance, books and supplies, and other related expenses. After 2009, the Congress further expanded the law, among other things allowing benefits to be used for nondegree and apprenticeship programs. The amount of benefits people receive depends on the length of their qualifying active-duty service (partial benefits are available with a minimum of 90 days’ service), enrollment status (full time or part time), and the type of school or program they enroll in.
The Post-9/11 GI Bill differs from its predecessors in several important ways: There is no specific dollar limit on tuition and fees for programs at public institutions; benefits may be transferred to spouses or children once members have served between 6 and 16 years in the military; and students generally may use the benefit at any point in time.
How Much Is Spent on the Law’s Benefits?
The Veterans Benefits Administration (VBA) spent $65 billion (in 2018 dollars) on about 1.6 million beneficiaries in the seven years from the law’s inception through 2016, CBO estimates.
In 2016 (the most recent year for which beneficiary data were available), most spending on the Post-9/11 GI Bill (82 percent) was for Veterans, and the remainder was for spouses and children (see figure below). Total annual benefits were, on average $17,400 per person. (Active-duty personnel, who are about 10 percent of Post-9/11 GI Bill recipients annually, were excluded from the analysis of beneficiaries.) Tuition, fees, and housing accounted for 95 percent of total spending in that year.
The housing allowance, the most expensive of the law’s benefits, is set at the amount of the Department of Defense’s monthly basic housing allowance. It accounted for about half of the spending for Veterans, about 45 percent of the spending for children, and 30 percent of the spending for spouses, who often received housing through the service member. Most beneficiaries (90 percent) attended programs more than half time, which qualified them for part or all of the housing benefit.
Spending was less per capita for students who enrolled in programs that were primarily online than it was for beneficiaries who attended brick-and-mortar schools, CBO estimates. That is because tuition and fees for online programs tend to be lower compared with other programs and because the housing allowance for students in online programs is set at half of the monthly basic housing allowance.
What Types of Schools Do Beneficiaries Attend?
Veterans and spouses who used the law’s benefits chose different types of education than their children did. Veterans and spouses were less likely than their children to enroll in public institutions; they were more likely to pursue postsecondary programs at junior colleges, private nonprofit and for-profit institutions, and graduate schools. By contrast, most children, like many college-age students nationwide, attended undergraduate programs at public universities and colleges.
Veterans and spouses enrolled in online programs at about the same rate as all students nationwide (13 percent of Veterans and 17 percent of spouses in 2016, compared with about 13 percent of all students). Children of Veterans enrolled in such programs at much lower rates (about 2 percent). Overall, 8 percent (about $900 million) of total spending on the Post-9/11 GI Bill in 2016 was for beneficiaries in online programs.
The majority of beneficiaries in 2017 (the most recent year for which data on payments to institutions were available) attended public institutions; VBA paid those schools less per capita than it paid private nonprofit and for-profit institutions.
Since the law’s inception, 8 of the 10 institutions that received the largest amounts of tuition and fees have been private for-profit institutions. For-profit firms accounted for a very large share of the online programs used by beneficiaries.
Does the Law Meet Its Objectives?
The degree to which the Post-9/11 GI Bill achieves the purposes set out in the bill is difficult to measure. Because VBA collects little data on the number of beneficiaries who complete programs and no information on employment outcomes, the effectiveness of the benefits in helping service members readjust to civilian life is unclear. (Lawmakers enacted legislation in 2016 and 2017 to require VBA to provide more data on outcomes, but as of April 2019 VBA had not delivered its report.)
Recent research indicates that the newest GI Bill is comparable to prior Veterans’ education benefits in that it makes retaining service members more difficult because in order to use the educational benefits themselves, service members usually must separate from the military. The option to transfer benefits to dependents, which was designed to encourage longer service, appears to have had little impact. Furthermore, because beneficiaries have broad latitude in choosing a program, VBA has limited ability to ensure that beneficiaries enroll at institutions whose graduates have strong employment prospects and relatively high earnings. About one-third of Veterans using Post-9/11 GI Bill benefits in 2016 attended for-profit programs, and most research indicates that graduates of such institutions have worse labor market outcomes than similar students in public institutions.
More than 21 million Veterans and Servicemembers live in the U.S. today, but only about 6 percent of them bought a home using a VA home loan in the past five years. That percentage could be much higher.
Eligible Veterans often bypass the program as a viable option for a number of reasons.
First, they may not know all the advantages. Second, they may think getting a VA loan is an arduous process to be avoided. Last, some lenders don’t take the time to teach Veterans about the program, or don’t know much about it themselves. The VA home loan is a program non-military home buyers wish they had access to.
My advice: take a few minutes to learn these 10 facts about the program, and you’ll all but forget about any other home buying or refinance option.
1. No down payment, no mortgage insurance
These are perhaps the biggest advantages to a VA loan. You don’t need a down payment. None whatsoever. Most mortgage programs, such as FHA and conventional loans, require at least 3.5 percent to five percent down.That’s up to $12,500 on a $250,000 home purchase.
With a VA loan, you can buy immediately, rather than years of saving for a down payment. With a VA loan, you also avoid steep mortgage insurance fees. At 5 percent down, private mortgage insurance (PMI) costs $150 per month on a $250,000 home, according to PMI provider MGIC.
With a VA loan, this buyer could afford a home worth $30,000 more with the same monthly payment, simply be eliminating PMI. Using a VA loan saves you money upfront, and tremendously increases your buying power.
2. Use your benefit again and again
Your VA home loan benefit is not one-and-done. You can use it as many times as you want. Here’s how.
Assume you purchased a home with a VA loan. But now, you’ve outgrown the home and need something bigger. When you sell the home and pay off the VA loan completely, you can re-use your benefit to buy another home. Your entitlement is restored in full.
But that’s not the only way to re-use your benefit.
Eligible Veterans and Servicepersons can receive a one-time restoration when they pay off the VA loan, but keep the home. This scenario comes into play if you purchased the home long ago, and have paid off the loan. It also applies if you have refinanced the VA mortgage with a non-VA loan.
In these cases, you can keep the home, and enjoy the benefits of VA home buying one more time.
3. Your benefit never expires
Once you have earned eligibility for the VA home loan, it never goes away. Those who served 20, 30, even 50 years ago often wonder whether they can still buy a home today if they never used their benefit. If eligibility can be established, the answer is yes.
Eligibility is based on the length of time served, and the period in which you served. For instance, a U.S. Army Veteran with at least 90 days in service during the Vietnam era is likely eligible.
To check eligibility, first obtain your DD Form 214. With that document, a VA-approved lender can request your VA Certificate of Eligibility for you, or you can request it directly from VA’s eBenefits website. You may be eligible to buy a home using a VA home loan, even if you served long ago.
4. Surviving spouses may be eligible
More than 3,000 surviving spouses purchased a home with their fallen partner’s VA benefit in 2015. Un-remarried husbands and wives of Servicepersons who were killed in action can buy a home with zero downpayment and no mortgage insurance. Plus, the VA funding fee is waived.
There’s no way to repay the spouse of a fallen hero, but this benefit surely helps them move forward after tragedy.
5. VA Loan Rates Are Lower
According to loan software company Ellie Mae, VA loan rates are typically about 0.25% lower than those of conventional loans. The VA backs the mortgages, making them a lower risk for lenders. Those savings are passed on to Veterans.
Additionally, VA loans come with some of the lowest foreclosure rates of any loan type, further reducing risk for lenders. No surprise here, but Veterans and Servicepersons take homeownership seriously. These factors add up to lower rates and affordable payments for those who choose a VA loan.
6. VA loans are available from local lenders
The VA home loan is unlike most other VA benefits. This benefit is available from private companies, not the government itself. The Department of Veterans Affairs does not take applications, approve the loans, or issue funds. Private banks, credit unions, and mortgage companies do that.
The VA provides insurance to lenders. It’s officially called the VA guaranty. The VA assures the lender that it will be repaid if the Veteran can no longer make payments. In turn, lenders issue loans at superior terms. In short, a VA loan gives you the best of both worlds. You enjoy your benefit, but have the convenience and speed of working with your chosen lender.
7. Buy, refinance or tap into home equity
The VA home loan benefit is not just for buying homes. Sure, it provides unmatched home buying advantages, but you can also use it to refinance your existing mortgage, whether it’s a VA loan or not.
Homeowners with a VA loan can use the Interest Rate Reduction Refinancing Loan, or IRRRL, to easily drop their rate and payment without an appraisal, or even paystubs, W2s or bank statements. The VA streamline refinance, as it is commonly known, gives VA loan holders a faster, cheaper way to access lower refinance rates when rates fall.
Even homeowners without a VA loan can use a VA refinance. The VA cash-out loan is available to eligible Veterans who don’t have a VA loan currently. As its name suggests, a VA cash-out refinance can be used to turn your home’s equity into cash. You simply take out a bigger loan than what you currently owe. The difference is issued to you at closing.
The VA cash-out loan amount can be up to 100 percent of your home’s value in many cases. Use the proceeds for any purpose – home improvements, college tuition, or even a new car.Many homeowners today are dropping their rate and taking cash out simultaneously, accomplishing two goals at once.
But you don’t have to take out cash to use this VA loan option. You can also use it to pay off a non-VA loan. Eligible homeowners who pay mortgage insurance or are dealing with other undesirable loan characteristics should look into refinancing with a VA loan. It can eliminate PMI, get you into a stable fixed-rate loan, pay off a second mortgage, or simply reduce your rate to make homeownership more affordable.
8. Lenient guidelines for lower credit scores, bankruptcy, foreclosure
Unlike many loan programs, a lower credit score, bankruptcy or foreclosure does not disqualify you from a VA home loan.
Shop around at various lenders, because each will have its own stance on past credit issues. However, VA guidelines do not state a minimum credit score to qualify. This gives lenders leniency to approve loans with lower scores. In addition, VA considers your credit re-established when you have established two years of clean credit following a foreclosure or bankruptcy.
Many homeowners across the U.S., military and civilian, experience bankruptcies and foreclosures due to a loss of income, medical emergency or unforeseen event. Fortunately, these financial setbacks don’t permanently bar VA-eligible home buyers from ever owning again.
The exception, though, is a foreclosure involving a VA home loan. In this case, you may need to pay back the amount owed on the foreclosed VA loan to regain eligibility. But for most home buyers with past credit issues, a VA home loan could be their ticket to homeownership.
9. Funding fee waivers
VA typically charges a funding fee to defray the cost of the program and make home buying sustainable for future Veterans. The fee is between 0.50 percent and 3.3 percent of the loan amount, depending on service history and the loan type.
However, not everyone pays the VA funding fee. Disabled Veterans who are receiving compensation for a service-connected disability are exempt. Likewise, Veterans who are eligible for disability compensation, but are receiving retirement or active duty pay instead, are also exempt from the fee.
10. Buy a condo with a VA loan
You can buy many types of properties with a VA loan, including a single-family (free-standing) home, a home of up to four units, and even manufactured homes. But condominiums are commonly overlooked by VA home buyers.
Condominiums are ideal starter homes. Their price point is often lower than that of single-family homes. And, condos are often the only affordable option in many cities.
The VA maintains a list of approved condominium communities. Veterans can search by city, state, or even condominium name on VA’s condo search tool. It’s not a short list. For example, there are more than 2,400 approved condo communities in Washington State, about 1,000 in Texas, and a staggering 9,000 in California.
As a Veteran or Servicemember, consider the array of home types when shopping for a home.
11. There are more than 10 reasons to use a VA home loan
The preceding 10 facts are just a few, and there are actually many more reasons to use your VA loan benefit. You’ve certainly earned it.
The freedom afforded to this country by members of all branches of the military, past and present, is not easily repaid. But consider this program a small “thank you” for your service and dedication.
How to help your VA claim while waiting on the VA
Currently, the VA has a national backlog of about 3 years for appeals. That means that from the time a Veteran files an appeal to when the VA makes a decision on that appeal the Veteran will have waited for at least 2.5 to 3 years. Many Veterans find the long appeals process discouraging, but there is so much that a Veteran can do to support their claim(s) while waiting on the VA to get to their appeal.
The number one most advantageous thing that a Veteran can do to support their VA claim for disability benefits is to have continuous medical treatment. Many of our Veterans tell us that there is no point in going to see their doctor because they can’t do anything to help their disability. Even if that is true, your doctor will create a medical record related to that appointment; each appointment creates a bread crumb trail of medical records for the VA to follow. The more medical records to support your VA claim the better! The VA will not take your word that you are disabled, and they are not mind-readers; they need proof that your disabilities have continuously affected you. Whether or not your doctor actually does anything to help your disabilities, having a record of your visit establishes: that you are actively seeking treatment, the severity of your disability over time, and it could surprise you and lead to some relief from your disabilities!
Creating a paper trail
In addition to having continuous medical treatment…Veterans, please do not minimize your symptoms! If your doctor or therapist asks you how you’re doing, don’t say “fine” unless you’re actually fine because the doctor will put that you are fine in your medical records. Instead, tell them “I’ve been feeling really down lately,” or “the pain from my back has been really bad lately, and has been making it hard to sleep.” Doctors are there to help you, and if you speak honestly with them, the VA will see how severe your disabilities are in your medical records. Again, your doctors and the VA cannot read your mind. So, the more open and honest you are about your disabilities, the better you support your VA claim for disability benefits.
Another thing Veterans can do to help support their VA claim is to keep a log of how your disabilities are affecting you. Again, the VA needs documentation to prove the severity of your disabilities. If you have residuals from bladder cancer, keep a log of how frequently you urinate throughout the day and night. If you have migraine headaches, write down when you get a migraine, what your symptoms are, and how long the migraine lasts. If you have a mental health disorder, write down your symptoms and how they affect your daily life. If you find yourself having to leave work early due to your disabilities, keep track of when you had to leave early and what triggered your need to leave. It can be really difficult to establish exactly how severe your disabilities are, so providing the VA with a log of how your disabilities effect you could make a difference in rating.
Can I speed up my VA claim?
Lastly, many of our Veterans ask about expediting their VA claim with the VA. We know that many, many Veterans are not in a good place financially. However, the VA is extremely strict with what cases they will expedite. The only time that the VA will expedite a claim is if the Veteran is homeless, is facing foreclosure (documentation is needed to prove this), the Veteran has been diagnosed with a terminal illness, or the Veteran is 75 years or older. If you do not fit into one of those categories, then your case will not be expedited. However, if you follow the above suggestions to help support your claim, then you increase your likelihood of a grant when the VA finally does get to your appeal.