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Practical Steps To Take with New VA Appeals Process

New VA Appeals Process

 

Appeals Modernization Act – Practical Steps

The Appeals Modernization Act was designed to give Veterans more choices and faster decisions from the VA. Under the previous system, now referred to as Legacy, the VA was facing a backlog with no end in sight and Veterans were facing a complex system with no set timeframe. This new system is intended to streamline the appeals system for faster processing times. So let’s answer some questions and see what this AMA system will actually look like…

What can I hope for in AMA?

Decisions under AMA are supposed to provide improved notice about the reasons for the VA’s decisions and your available options. Decisions should identify the issues decided on, favorable findings, what was not met, and the criteria needed to get the decision granted.

These appeals are also supposed to be processed faster (4-5 months for Supplemental claims and Higher-level review, and 1 year for Direct Review to the Board). It is not known how long the BVA Evidence Submission and Hearing lanes will take, only that they will take longer. But the VA intends to provide regular wait time predictions to keep Veterans up to date on the status of their appeals.

How do I get my claim into AMA?

If you file a new claim today, or you did after February 19, 2019, it will automatically be in the new system and the new rules apply to you. If you received a decision on or after February 19, 2019, on your initial claim, you are also automatically in the new system.

If you have a pending appeal that is in the Legacy system, you can opt into the new system after receiving an initial decision, a Statement of the Case (SOC), or a Supplemental Statement of the Case (SSOC).

Note: If you are opting into the new system after receiving an SOC or SSOC, you only have 60 days from the date of the SOC/SSOC to do so.

What if I am in AMA but I don’t like it?

Unfortunately, you’re stuck. Once you are in the new AMA system, whether by opting in as explained above or by filing a new claim, you cannot return to the Legacy system.

How do I appeal my decision?

Remember there are now three options to choose from when you want to appeal a decision. There are also new forms to file, whether electronically or by paper.

  • Supplemental Claim: VA Form 20-0995
  • Use this form to initiate a supplemental claim. Here you will identify the issues you want to appeal, and specify what new records you would like the VA to help you locate
  • Higher-Level Review: VA Form 20-0996
  • Use this form to request a higher-level review, and identify the issues you wish to appeal
  • Board of Veterans Appeals: Notice of Disagreement – VA Form 10182
  • Use this form to appeal your decision to the Board and identify the specific issues that you disagree with. Here you will also select which of the three paths you wish to take (either Direct Review, Evidence Submission, or Hearing).

Can I change the appeal option I’ve selected?

If you selected one appeal option (Supplemental, Higher level Review, or Board of Veterans Appeals), you can change to another lane if the VA has not yet issued a decision. If you change lanes within one year of the decision you’re appealing, you will still preserve your effective date. So if you appealed through Higher-Level Review and then realize you have new evidence to submit, you can do so and it would be processed under the Supplemental Claim lane.

If you selected to appeal to the Board of Veterans Appeals, and you select one of the three options to have your case reviewed by the Board, you can also change your mind. But if you change your mind, you have to do so within 30 days of the Board receiving your Notice of Disagreement form (or within one year of the original decision on appeal, whichever is later).

Note: If you selected Evidence Submission and have already submitted evidence, you cannot then move to the faster lane of Direct Review. In the same way, if you select to have a hearing, you cannot then move to the faster lane of Direct Review once you have had your hearing.

What happens to my claim in Legacy?

If you currently have pending appeals in the Legacy system and you did not opt your appeals into RAMP while that was still an option, you remain in the Legacy system. AMA will not bring change to the way Legacy claims are handled and processed. The VA will continue to work all of the appeals in the Legacy system together with the appeals in the new system.

If you did opt your appeal into RAMP, your appeal will now be handled in the new system and RAMP will be phased out.

Source

GI Bill transfer ban for older troops could be thrown out

GI Bill Transfer Ban

 

Senior service members would once again be able to share their GI Bill benefits with spouses and children under a provision included in a House panel’s budget bill draft.

The measure was unanimously approved by the House Armed Services Committee during their debate of the annual defense authorization bill on Wednesday. Sponsor Rep. Joe Courtney, D-Conn., said the idea is to reverse “a truly lousy decision by the Department of Defense last year.”

The measure still must survive negotiations with the Senate before it becomes law, but supporters said they hope it sends a clear message to Defense Department leaders about their disapproval of the rule change, which blocks troops with more than 16 years of service from transferring their education benefits to a spouse or children.

That move goes into effect on July 12. Military officials in recent weeks have warned affected service members to finish their transfer paperwork before that deadline or lose out on sharing tens of thousands in education benefits with their family.

“This decision … punishes those who have served over a long period of time, maybe got married late or started a family later,” Courtney said. “It cuts them off from being able to get the GI Bill’s really special component of transferability.

“If you talk to service members, it is one of the most popular aspects of the benefit — to have that for their family.”

Service members wounded in combat are exempted from the rule change.

Courtney said reserving the decision would not have a significant financial impact on the federal government but could help with retention and morale.

The post-9/11 GI Bill benefits cover the full cost of in-state tuition plus a monthly living stipend for eligible troops, Veterans and family members. Troops must serve six years before they can transfer benefits to a family member.

Officials from Iraq and Afghanistan Veterans of America have lobbied for the change in recent months, arguing it unfairly limits benefits promised to service members.

Senate officials have not yet weighed in on the idea.

Source

VA Disability Claims: How to Approach Hard to Prove Hearing Loss Claims

Hearing Loss Claims

 

It’s a straightforward conclusion that if someone loses a leg in combat, their loss of a limb is related to military experience. That is a simple and clear A+B=C situation. However, in many cases, such as hearing loss claims, the direct link between the current condition and an incident in service is far less clear.

Many Claims are Clear Cut, and Much More are Not

We used the example of someone having an enemy assisted amputation above, but what if instead of a combat-related trauma the leg was lost due to an infected cut from a dirty stair rail at the barracks? Well, it happened during service, so it is still presumably service connected. Take our example a little further, an infection started the day after separation, from an unknown source, and it resulted in the loss of a limb, is it then still service connected? What about if the infection began 2 months after service?

The truth is, while many claims are clear cut, there are lots of VA claims for service connection that are reasonable, but the ties that connect them to service incidents are harder to prove. This issue is why we spent so much time talking about overcoming a service nexus denial in this article.

Service Nexus Denials

Service nexus denials are one of the top reasons Veterans end up seeking the support of an experienced VA claims attorney in the first place. They are hard to prove, and to overcome the denial means getting much deeper into the details of a given Veterans’ service records than most initial claims for compensation delve.

The first step in overcoming the nexus denial barrier is to figure out if there is, in fact, no way to directly tie an injury (mental or physical) to a service incident. It is ok if there is no clear link, but eliminating all the easiest paths first is usually the best course of action.

If there is no clear and direct connection between the current injury or ailment and a service incident, then the particulars of the Veteran’s military service become the next thing to take an in-depth look into, regarding the pursued claims? Moreover, it helps to figure out how the claim(s) fit into the broader picture of the Veterans history – before during and after service?

An Example Of A Hearing Loss Claim Denial Will Help

A Marine has discharged from service ten years ago and is claiming bi-lateral hearing loss & tinnitus. There’s no direct service connection, no med-call records of ear pain, trauma, or anything related to ears, hearing, or head injuries. The claim is denied because there’s no direct connection to the injury from the Marine Corps Veteran’s military experience. The service nexus is unclear. This claim is a Hard to Prove VA Disability.

Fortunately, “hard to prove” can be overcome with the VA, especially if we remember that the burden of proof is as likely as not, rather than absolute proof beyond all other doubt.   In this example, the way to approach a solution is to look at some of the following lines of conjecture.

What Was the Veteran’s Vocation After Service?

This line of questioning is necessary to either establish that alternative explanations are less likely than their military service to have caused the hearing loss or to recognize the alternative hypothesis the VA through a Decision Review Officer or the VA Board of Appeals may raise.

If for instance the Marine Veteran worked an office job for the last ten years and their exposure to loud noises was minimal, it is a much more reasonable argument that combat and training for combat are the likely cause of hearing damage. Whereas, if the Veteran worked in a construction environment the last ten years, after leaving service, the alternative explanation for hearing loss is much more likely to be something that needs to be addressed and overcome. In this particular example, a strong approach is to lean hard on the idea that a 50/50 chance of one proposed nexus vs. another means the VA should side with the Veterans claims when pressed to do so.

What Was the Veteran’s Vocation While in Service?

Again, taking a more wide angle approach means looking at potential alternative genesis, like we just looked at, and it means seeking to look at a lifetime of possible experiences vs. any particular incident. For instance, a Marine Veteran is likely to have spent extensive time firing weapons and operating in loud environments. In this case, making the claim that Marines will be exposed to conditions that harm hearing is about as straight forward as it gets.

Still, obvious for one person is obtuse for the next. So, breaking down the conditions that may harm a service member’s hearing is helpful in making sure there’s no doubt the Veterans experiences were at least as probable as any other alternative explanation. To make this, list out the circumstances, the numbers, the details, as best you can determine. Here’s how you might go about it in a letter to the VA on a Veteran’s behalf.

“Mr. Smith, while serving in the Marine Corps as an admin clerk was exposed to loud noises and severe conditions on a regular basis. Hearing protection was not always readily available nor practical for using due to operational needs. Starting in boot camp, Mr. Smith fired weapons from his right-hand side, was exposed to extreme noise (repeated loud yelling) in close-proximity, on both sides.

 

In Marine Combat Training (MCT), and required to go through basic training, Marine combat Mr. Smith fired larger weapons and practiced using them in operational environments where hearing protection was not always available. As an admin clerk, Mr. Smith was exposed to loud vehicle noises on a regular basis as he was required to work in close collaboration with armored vehicle sections and was also required to participate in regular weapons qualification and training.

 

Since separating from military service, Mr. Smith has completed college and worked in software development. Both environments are much less likely than a typical military environment, and especially a Marine Corps armor, weapons, and training environment. Mr. Smith also has no family history of hearing loss and cannot propose an alternative explanation for his condition.

 

Without an alternative proposal that is more likely than Mr. Smith’s Marine Corps experiences, the VA should acknowledge the Nexus between his current condition and his experiences in the military, and award Mr. Smith the compensation appropriate per his hearing impairment levels.”

This Process Works Well for Other VA Claims Too

We are leaning heavily on the loss of hearing as an example, but this process works well for other impairments too. The basic premise is sound for PTSD, back injuries, knee pain, TBI, and other conditions or incidents that can be hard to prove at first.

We are scratching the surface on this. Please reach out to us and share your thoughts and experiences.   There is a lot more to talk about in regards to nexus denials.

Source

Did the VA lowball your VA PTSD rating? Here’s how to find out.

Lowballing

 

The day was just like any other day. Until you checked your mail. The big brown envelope was in it, with the VA logo in the upper left corner. You knew it was your VA PTSD Rating Decision. It’s about time – you filed your PTSD service-connection claim 18 months ago. “Why does the VA take so long,” you think. “It shouldn’t be that hard for the VA to service connect PTSD.”

You tear off the envelope open expecting to see a 70%, or 100% rating. That dude in your unit who was there that day – and saw the same things you did – got a 70%, and he seems to be having an easier go of life than you.

Part of you is excited. That extra compensation is going to make a difference. You are struggling to make ends meet as it is. You got fired from the last job for getting upset with your boss. The job before that you quit because all the people moving around that place wanting to talk made you jumpy and anxious.

When you read the letter, your heart sinks. Then, a wave of anger and frustration.

10%. That’s what they gave you. The same rating they give to every Veteran with tinnitus.

Where do you go? What do you do?

First, it is important to know that you are not alone – the VA is not out to get you, and didn’t do this as retaliation against you.

I’m serious about that: the VA is just plain incompetent when it comes to rating most medical conditions. Most of their raters try to do a good job – many are Veterans themselves – but the VA doesn’t give them training. VA management has created a culture of hostility and back-stabbing where all problems are blamed on the “unions.” Don’t let me go down THAT rabbit hole.

A lot of Veterans – some worse off than you, some better off than you – have a diagnosis of service-connected PTSD and find themselves “low-balled” with a rating that is much lower than that of their peers and that does not reflect the severity of their medical condition and the affect it is having on their lives.

When it comes time to appeal that low rating though, most Veterans have something else in common: they don’t have the tools to adequately challenge the low VA PTSD rating and don’t know where to start even if they did.

I’m going to give you some ideas to deal with the lowball VA PTSD rating.

The #1 thing to consider when your VA PTSD Rating is low-balled.

There is nothing wrong with getting a professional to help you.

VA PTSD claims can be really tough, even on straightforward facts. Recently, I talked to a Vet who witnessed some horrible, horrible things during the invasion of Panama that messed him for a long time and put him on a path to opioid abuse and homelessness. The VA denied him service connection for PTSD.

At my own firm, I’ve gone to the Veterans Court many times to straighten the BVA out on low-balled VA PTSD ratings. I’ve stopped them from symptom hunting. I’ve seen ratings so bad that the Veterans Court found the BVA’s actions “disconcerting.” And we stopped the BVA from an absurd decision that gave a 30% PTSD rating to a Veteran who had regular hallucinations due to his trauma.

These cases are hard to fight – there are so many traps for the unwary that just add stress and anxiety to a situation that probably already has too much.

And I’m here to tell you, if I was fighting the VA on my own PTSD claim, there is only one attorney I would get to help me: Matt Hill.

I don’t recommend people very often on the Veterans Law Blog® – it’s not what we are trying to do here. I”m trying to educate Veterans, not shill for other businesses. I’ll tell you about lawyers, and experts, but I rarely make suggestions.

I’ve known Matt for almost 10 years now, and he knows his stuff when it comes to PTSD claims. Click here to watch a quick interview with him a couple years back – use the form on that page and it will email him your info and ask for a consultation. And you can absolutely tell him that Chris Attig said he was the best.

But don’t let me pressure you: if you want to handle your own VA PTSD rating appeal – and many, many Veterans do so successfully without having to pay an attorney or stress out over a non-responsive VSO – the rest of this post is a good place to start figuring things out.

So, I’m going to walk you through 9 Things that might help you get the VA PTSD rating you are entitled to.

These are not the ONLY 9 things, and every case is different. Let’s get started.

Understand where your VA PTSD rating fits in the 4 Pillars.

When we talk about a VA Claim, we talk about simplifying it by building the 4 Pillars.

The 4 Pillars are the 4 things that every Veteran, in every VA claim, needs to prove before they will recover service-connected disability compensation.

Impairment ratings – or the way that the symptoms of your service-connected condition are equated to a percentage and a dollar value – are the 3rd Pillar.

The VA PTSD rating table is a little intimidating at first. It’s a jumble of sentence fragments, a massive list of symptoms, written by government bureaucrats that have long since forgotten how to communicate with earth people. Take a look:

VA lowball

That right there, my friends, is the definition of “impenetrable jargon.”

Here are 9 pointers to help you evaluate the rating in your VA PTSD claim.

#9: Did you File your VA Claim – the Right Way?

The 2 biggest errors that Veterans make in their VA Claims – and the 2 errors that cause them to get stuck in the VA backlog for longer and longer periods of time, are these:

A) They filed their claim and expected the VA to do the work – or to do the RIGHT work – in developing the claim.

B) They didn’t “connect the dots” for the VA in a simple straightforward way that made the VA Rater WANT to grant the claim.

What does that mean in the context of a VA PTSD rating? Usually, it means the Veteran dumped 3, 5, or 10 years of mental health treatment records, and a couple handwritten statements on a VA Form 21-4138, on the VA and hoped the rater would see how bad things were.

Remember, they don’t get training. And they see so darn many claims that they aren’t going to spend but a few minutes deciding your VA PTSD rating.

You can avoid those solutions by Filing Your VA Claim – the Right Way – from the very start.

* Find out WHAT 5-star evidence you need to put in your VA Claim.

* Find out HOW to make the arguments in a way that makes them easy for a rater to understand.

It’s a simple fact that if you put the RIGHT evidence into your claim, and explain in a very clean and basic way how that evidence shows your sleep apnea is service connected, your claim will go quicker.

And you will probably get better results.

When you are ready to start learning How to File Your VA Claim the right way, click here & read this post.

#8: The best-kept secret in a VA PTSD Rating are the Bankhead and the Mauerhan cases.

The Code of Federal Regulations – before listing the PTSD rating criteria in DC 9411 – says that when rating PTS, the VA should consider symptoms “such as” those listed.

That’s key language – as the Courts told us in Mauerhan.

You don’t have to find ALL the factors on the list to qualify for a particular rating. You just have to make a case for your symptoms being similar to the symptoms listed at the rating level you believe you are entitled to.

And what the Courts told us in Bankhead is that the VA is supposed to look HOLISTICALLY at your medical condition when assigning a rating for PTSD. I’m not going to get into Bankhead in too much detail here. I write a blog to help lawyers learn Veterans law, and have written about Bankhead.

#7: Occupational Impairment factors are more important for VA PTSD Rating purposes.

I’ve reviewed hundreds, if not thousands of Veterans C-Files.

When the VA PTSD rating is too low, a common reason I have seen is that the Veteran focused on the social impairment factors, and not the occupational impairment factors.

Take a look at all the factors in the 50% category for PTSD.

In addition to equating those symptoms to your social life (home, family, friends and social interactions), relate them to your ability or inability to get or keep a job.

#6: The VA PTSD rating criteria is NOT a complete list of PTSD symptoms.

Remember that the list of symptoms on this list are not meant to be every possible symptom.

If you have symptoms, or manifestations of symptoms of your PTSD that are not on this list (and there are plenty), see which ones on the list are similar to yours. And then make that argument – that your symptom is like such-and-such a symptom of the 70% rating.

The list of symptoms in the table above is not as a comprehensive listing of PTSD symptomatology. Think of it as an objective tool that was supposed to help make sure Veterans get rated as consistently as possible when PTSD affects them in similar ways.

#5: Did the VA examiner consider the frequency, severity and chronicity of PTSD symptomatology?

This is one thing that C&P Examiners overlook the most often. They hunt-and-peck through your medical records for a symptom that matches the one on the rating list, and if they don’t find it, they move on and give you a 10% rating. This is called “symptom-hunting” and it misses the whole point of Bankhead, discussed above.

To make a “holistic analysis” of your mental health condition’s impact on your life, the VA rater must consider the frequency, chronicity and severity of your PTSD in work and social settings.

Rarely do C&P exams for Veterans with a PTSD claim discuss how long the symptoms last or the length of any periods of “remission”. Sometimes, they discount the resilience/remission factors so much so that they change the Veteran’s diagnosis altogether.

For example, we were able to get one Veteran a higher PTSD rating by showing that her “resilience” was not as high as one might thing from frequent periods of remission: because of the nature of her symptoms, she still had significant social and occupational impairment limitations during the “remission” period.

#4: Did the VA consider ALL of the evidence in the record?

Far too often, VA C&P examiners focus on the most recent symptomatology.   The doctor has to look at the whole of the evidence of the record.

One thing you can consider doing is making a copy of any medical record relating to your PTSD out of your C-File.

Organize those documents from your C-File in chronological order, and type up an EASY to read outline of the chronology of your symptoms – keep it to 1 page, double spaced, so it’s easy to read.

Share it with your C&P Doc, and ask them to put the chronology in your C-File when they are done.

Don’t argue your position, just hand it to the doc and say “Here’s the chronology of my condition, if it helps you, use it. If not, just put it in my C-File.”

This is really hard to do if you don’t have your C-File – here’s how to get a copy of your C-File.

#3: What is the GAF scale?

The GAF scale is a subjective rating, on a scale of 0 to 100, for a doctor to “evaluate” a Veteran’s overall psychological, social and occupational functioning. The higher the score, the more ability the Veteran has – in theory – to function in a wide range of activities.

Problem is, GAF scores are nonsense. Seriously, ask a psychiatrist or psychologist how they come up with a GAF score. They pick a number out of thin air that “feels right.” One doctor could give you a GAF score of 30 (low functioning). Another could give you a GAF score of 60 (reasonably high functioning). For the same symptoms.

So, in DSM-V, the medical profession threw GAF scoring to the crap-pile.

Even still, I see many, many PTSD ratings that give heavy consideration to GAF scores over actual objective medical and lay evidence of PTSD symptomatology.

In current claims, the GAF score is no longer used – however, many VA Raters still wrongly use the GAF score and in some claims, the appeal is based on the law at the time of the denial, which may have involved use of the GAF Score.

This is CRITICAL: if you have a claim or appeal filed after August 14, 2014, and the VA or BVA is using GAF scores, they are very likely rating your claim wrong.

#2: Don’t let the VA rate you based on the ABSENCE of factors for a particular level.

I really think that if the VA would get away from using “negative evidence”, 80% of the backlog would be cleared out.

Seriously – I think I see this error in nearly every case I look at. The VA cannot usually consider the absence of evidence as proof of anything.

If your VA PTSD rating talks about how you DON’T have certain symptoms or problems, you need to get in touch with a lawyer ASAP. The way to fix this is a legal argument, coupled with a long-term appeal strategy.

Find out how to choose the best attorney for your VA appeal in this free eBook.

#1: Did you downplay your symptomatology at the C&P Exam?

Many Veterans get dressed up in their “Sunday best” for their Comp & Pen exam, believing that they are more persuasive when they “present” well.

Other Veterans refuse to shower, shave, or wear clean clothes, based on the suggestion of some random Veteran in a facebook group.

BOTH approaches are wrong.

Remember, doctors can assess the symptoms in your records – AND the symptoms they observe. When it comes to your appearance at the C&P exam, BE your symptoms.

More importantly, don’t downplay your situation.

Let the doctor see, and hear, how bad your PTSD is affecting you.

Vietnam Veterans out there tend to be serious hard-asses, and refuse to tell people when they are hurting.

I’m not judging at all – I am saying that the time to downplay your symptomatology is NOT during your PTSD C&P exam. (By contrast, you don’t want to exaggerate your symptoms either).

The Veterans I see with PTSD ratings that are too low (or that later face ratings reduction problems because they were over-rated) all have one thing in common – they failed to follow the Golden Rule of PTSD C&P Exams: Just be yourself.

Here are some more tips for getting through a VA PTSD C&P exam – or any C&P exam for that matter.

Conclusion.

These tips for evaluating your VA PTSD Rating are worthless unless you have your C-File.

Without your C-File, you can’t know how much weight the VA is wrongly putting on arbitrary GAF scores from 10 years ago, whether all of your medical records made it into the VA’s hands, or whether there is something really damaging in your file (like some VA C&P examiner down in Florida who finds every Veteran is malingering, over-reporting, or under-reporting symptoms without explaining what those terms mean, medically).

Here’s where I show you my Firm gets C-Files from the VA.

I hope these tips helped – let me know if you have any thoughts or questions.

Source

The Holy Grail: An EASY Path to Proving Sleep Apnea is Service Connected?

Proving Sleep Apnea

 

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

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Learn About Making statements on Your VA claim

Statements on 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:

  1. Statements should be written in the witness’ own words. They should only speak to what they know what they have personally witnessed.
  2. 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.
  3. Be sure to include the contact information of the witness writing the statement if the VA were to have any questions.
  4. The statement should state how the witness knows the veteran.
  5. There should always be a signature of the person writing the statement.
  6. 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.

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How to Service Connect Chronic Fatigue Syndrome

Chronic Fatigue Syndrome

 

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.

  1. 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,
  2. History of studies and lab work showing the doctor ruled out other possible conditions that may be causing the same symptoms,
  3. 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
    • Headaches
    • 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!

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New GI Bill transfer rule will impact older service members

GI Bill Transfer Rule

 

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.

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VA Home Loan Secretly Ripped Off Veterans By $150 Million

DVA Logo 39

 

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.

Surprised?

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Win Your VA Voc Rehab Denial Using This Simple Strategy

Voc Rehab 002

 

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.

Background

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.

Fearful Counselors

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.

Interpretation 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.

Next Step

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.

Old System

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.

Happy Hunting

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.

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