WASHINGTON, D.C. (WBRE/WYOU-TV) -- A Veteran’s advocacy group is urging Congress to provide additional VA health benefits to Veterans who may have been exposed to toxic chemicals while serving in Guam and American Samoa.
Eyewitness News Washington Correspondent Mark Meredith with why some say the effort is long overdue.
Sheila Kilpatrick’s husband Lonnie died of cancer last year.
She says his poor health stemmed from exposure to toxic chemicals, like agent orange, while he served in Guam in the 1970s.
"We know this was due to the herbicides that were sprayed on Guam, we know that we witnessed the spraying" Said Kilpatrick.
The Kilpatrick family says they faced pushback from the VA over efforts to get additional health benefits.
Two congressmen call that unacceptable.
"Four decades is far too long, we can't wait any longer, our Veterans are heroes," Said Florida Representative Gus Bilirakis.
Bilirakis and Guam’s delegate introduced a new bill to expand health benefits for Veterans who served in the Pacific Islands.
"If it was toxic enough for us to discontinue their use since in 1980, then it was creating hazards for our Veterans and our communities, that we need to acknowledge," Said Rep. Michael San Nicolas, Guam
In January a federal judge ruled the v-a must consider benefit claims from navy Veterans who say they too were exposed to toxic chemicals while serving off the Vietnam Coast.
Veteran advocates say that ruling allows them to focus on cases involving people who served in Guam.
Kilpatrick says she expects the fight will take months but remains optimistic.
"Oh I’m not giving up, no way I’m giving up, I’ll fight wherever I have to go, I don't like to fly but if i have to fly...I'll fly again"
If you’re a wartime Veteran who meets certain age or disability requirements, and your income and net worth are within certain limits, you may qualify for monthly payments through our Veterans Pension program. Find out if you can get this benefit.
Can I get Veterans pension benefits from VA?
You may be able to get pension benefits if you meet the requirements listed below.
Both of these must be true:
- You didn’t receive a dishonorable discharge, and
- Your yearly family income and net worth meet certain limits set by Congress. Your net worth includes all personal property you own (except your house, your car, and most home furnishings), minus any debt you owe. Your net worth includes the net worth of your spouse.
And at least one of these must be true about your service. You:
- Started on active duty before September 8, 1980, and you served at least 90 days on active duty with at least 1 day during wartime, or
- Started on active duty as an enlisted person after September 7, 1980, and served at least 24 months or the full period for which you were called or ordered to active duty (with some exceptions) with at least 1 day during wartime, or
- Were an officer and started on active duty after October 16, 1981, and you hadn’t previously served on active duty for at least 24 months
And at least one of these must be true. You:
- Are at least 65 years old, or
- Have a permanent and total disability, or
- Are a patient in a nursing home for long-term care because of a disability, or
- Are getting Social Security Disability Insurance or Supplemental Security Income
How do I know if I served under an eligible wartime period?
Under current law, we recognize the following wartime periods to decide eligibility for pension benefits:
- Mexican Border period (May 9, 1916, to April 5, 1917, for Veterans who served in Mexico, on its borders, or in adjacent waters)
- World War I (April 6, 1917, to November 11, 1918)
- World War II (December 7, 1941, to December 31, 1946)
- Korean conflict (June 27, 1950, to January 31, 1955)
- Vietnam War era (February 28, 1961, to May 7, 1975, for Veterans who served in the Republic of Vietnam during that period. August 5, 1964, to May 7, 1975, for Veterans who served outside the Republic of Vietnam.)
- Gulf War (August 2, 1990, through a future date to be set by law or presidential proclamation)
What should I do if I received an other than honorable, bad conduct, or dishonorable discharge?
If you’ve received one of these discharge statuses, you may not be eligible for VA benefits.
There are 2 ways you can try to qualify:
How do I apply?
You can apply online right now.
As the number of appeals filed with the VA increases, the average wait time for Veterans to receive decisions increases exponentially. In order to try and rectify the clogged up system, President Trump signed into law the Veterans Appeals Improvement and Modernization Act of 2017 which introduced the RAMP program. This Act revamps the entire VA disability benefits appeals process and will replace the current appeal system. The new appeals system is set to replace the current “legacy” system on February 19, 2019.
Any claims filed on or after February 19, 2019, will be worked under the new appeals system. If you currently have pending appeals in the legacy system and you did not opt your appeals into the RAMP program, they will continue to be worked under the legacy system. The plan is for the VA to work all of the legacy appeals until all appeals are under the new system, though this process could take years to complete. The VA will be conducting reviews of appeals in the legacy system and new system simultaneously.
Under the new system, once a Veteran receives a decision, he or she still has one year from the date of the decision to appeal it. If the Veteran decides to appeal the decision, he or she must choose between three appeal avenues or lanes: Higher Level Review, Supplemental Claim, or file a Notice of Disagreement (NOD) directly to the Board of Veterans Appeals.
Higher Level Review
Currently, there are two Regional Offices conducting Higher Level Reviews: Seattle and St. Petersburg. In the Higher Level Review lane, a more senior VA adjudicator (called Decision Review Officers in the Legacy system) will perform a de novo review of your file and make a decision based on the evidence already of record. De novo means that they will review your appeal without regard to prior decisions and make a decision based on their view of all of the evidence. In this lane, you are basically getting a different person to review the same evidence because you cannot submit new evidence in this lane. There is no duty by the VA to assist in gathering additional evidence or records; the decision is made based on the evidence in the record. This lane in the RAMP program could potentially be utilized for extremely blatant and obvious errors that could be easily rectified without the need for additional evidence.
The Supplemental Lane will be conducted at various Regional Offices throughout the United States. In this lane, new evidence is required to reopen a previously denied claim or file for an increased rating of a service-connected condition. The evidence must be “new and relevant” to the claim; “new” meaning not previously submitted or received by the VA and “relevant” meaning significant and related evidence to the issue you are claiming. For example, the new and relevant evidence could be evidence of symptoms warranting an increased rating or a nexus opinion for service connection. In the Supplemental Lane of the RAMP program, the VA has a duty to assist the Veteran in developing or finding evidence for their claim. For example, if you send correspondence stating that you have been receiving treatment at a specific facility and give details of the time period, providers, and other related issues, the VA has a duty to try and find these records for you. The more specific you are, the easier it will be for the VA to find the records. However, it may be better for you to get the records and send them to the VA as new and relevant evidence so that you know they will be added to your file.
NOD Direct to the Board
I find this to be the most interesting change in the new system. In the legacy system, a Veteran had to wait to get a rating decision and then appeal it with an NOD. Then the Veteran had to wait to receive a Statement of the Case and then file a VA Form 9 to get in line for review at the Board. This process could take an average of at least 3+ years. The new RAMP program cuts out Statement of the Cases and VA Form 9s allowing Veterans the ability to appeal directly to the Board after receiving a rating decision. This could potentially save a lot of time for more complicated issues that would likely not get granted at the Regional Office, like non-presumptive Agent Orange conditions.
If a Veteran chooses to file an NOD directly to the Board, there are three review options to choose from:
- Direct Review: This lane will most likely be the fastest lane at the Board. It is a review by the Board based on the evidence of record at the time of the prior decision. This means that additional evidence cannot be filed and there is no request for a hearing. The Board makes a decision based solely on the evidence of record.
- Evidence Submission: This lane allows for submission of additional evidence but within 90 days of filing the NOD. There is no request for hearing so the Board makes their decision based on the evidence of record and any additional evidence filed within the 90 day period.
- Hearing: This lane will most likely be the slowest lane as additional evidence can be submitted and there is a request for hearing. This means that evidence can continue to be submitted until the Board schedules and conducts a hearing with the Veteran.
There are many similarities but also differences between the legacy system and the RAMP program’s appeals system. It is important to know your options moving forward with your current appeals and any future appeals. These changes are expected to go into effect February 19, 2019, and we will continue to update on these changes as we enter this new chapter in VA appeals.
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.
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 your18 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.
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.
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. I’ve seen ratings so bad that the And we stopped the BVA from an absurd decision that gave a
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.
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.– 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.
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.
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:
That right there, my friends, is the definition of “impenetrable jargon.”
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:
- They filed their claim and expected the VA to do the work – or to do the RIGHT work – in developing the claim.
- 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.
- Find out WHAT you need to put in your VA Claim.
- Find out in a way that makes them easy for a rater to understand.
And you will probably get better results.
When you are ready to
The Code of Federal Regulations – before listing the PTSD rating criteria in DC 9411 – says that when rating PTS, the VA should consider symptoms those listed.
That’s key language – as the Courts told us in .
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 in too much detail here. I write a
When the VA PTSD rating is too low, a common reason I have seen is that the Veteran focused on the impairment factors, and not the impairment factors.
Take a look at all the factors in the 50% category for PTSD.
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.
This is one thing that 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 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.
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.
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.”
The, 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.
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.
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.
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.
approaches are wrong.
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).
Without your C-File, youfrom 10 years ago, whether all of your medical records , 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).
I hope these tips helped – let me know if you have any thoughts or questions.
Editor’s note: This is the second in a series of articles focusing on appeals.
In my previous post, I wrote about the difference between a claim and an appeal. Most Veterans are aware that claims are rated at the VA regional office (RO), usually in their state. However, a lot of Veterans are not aware that appeals are also reviewed at the regional office before they go to the Board of Veterans’ Appeals (Board). In this piece I will discuss the RO’s appeal process, your role in the process, and the things you can do to help expedite your appeal.
Appeals at the local regional office level
Once a VA office issues its decision on your claim, you have one year from that date to file an appeal. Read the decision letter closely: it will tell you why VA made the decision it did. If you are unsure why or how VA made its decision, ask a Veterans service officer for help. You can also call VA or go to your regional office.
If you disagree with VA’s decision for any reason – the effective date of your award, the rating percentage you were given or the reason you were denied – you should file a Notice of Disagreement (NOD). If VA included VA Form 21-0958, Notice of Disagreement, with its decision, you must use that form to file your NOD – it is mandatory. The NOD is the start of your appeal.
Once you file your NOD, you have several rights: you can submit new evidence, ask for a de novo review where a decision review officer (DRO) takes a “fresh look” at the claim, reviewing the entire claims file and/or ask to testify and present evidence at a telephone or in-person hearing. VA encourages Veterans who choose to have a hearing to opt for an informal teleconference hearing, since these can be scheduled much faster. Many appeals are favorably resolved at these early stages. Make sure you file your NOD on time: your right to appeal ends a year from the date of VA’s decision.
When you file your NOD, you have a choice: either select a traditional review or a de novo review by a DRO. You can make this choice right on your NOD when you start your appeal. If you don’t make a decision, VA will mail you a notice of this right, and you’ll have 60 days to respond, so answer right away.
I’ve mentioned a couple pro tips, but I want to call them out:
- If you are dissatisfied with the decision on your claim, file your appeal right away
- When you file your NOD, submit any new evidence you have; waiting until later on in the process can delay your appeal
- Also, when you file your NOD, state if you want a DRO review or a traditional review – this will also save you time on your appeal
If you opt for a traditional review, a member of the RO appeals team reviews the decision on your claim to determine if it was processed correctly; if it was, the RO will issue you a Statement of the Case (SOC). An SOC lists the applicable laws and regulations related to that decision, all the evidence that was considered in making the decision and a detailed explanation of the decision VA made.
De novo Review
A de novo review is your other option. de novo, which means “new,” or “fresh look,” is a Latin term used by lawyers. In a de novo review, a DRO, who is a senior-level, highly experienced claim processor, looks at all the evidence of record (your entire claims file, including any new evidence you’ve submitted). The DRO can grant your appeal, deny your appeal and issue an SOC, or order additional development (such as a new medical exam or a request for additional medical records), if warranted.
Unless the RO grants the full benefit you are seeking, you will receive an SOC. This means EVEN if the RO grants your claim, you may receive an SOC, allowing you to continue the appeal. For instance:
- If you were appealing service connection for tinnitus (ringing in the ears) and the RO granted this on appeal at 10 percent, the RO appeals team will ONLY issue a rating decision since 10 percent is the highest rating you can receive for tinnitus. This means the appeal has been granted in full. You will not receive an SOC.
- If you were appealing VA’s 10-percent rating for arthritis in your lower back because you believe you should be rated higher, but the RO appeals team disagrees and continues your 10-percent rating, you will receive ONLY an SOC.
- If you were appealing VA’s 10-percent rating for arthritis in your lower back because you believe you should be rated higher, and the RO appeals team agrees and increases your rating to 20 percent, you will receive BOTH a new award decision explaining why VA increased your disability rating AND an SOC detailing how VA arrived at its decision, including why you were not entitled to a rating higher than 20 percent.
You have 60 days from the date the SOC is mailed to you to file a VA Form 9, Appeal to the Board of Veterans’ Appeals, if you wish to continue your appeal to the Board. Any time you submit more evidence after the SOC or before the Form 9, VBA must conduct another review of the case and issue another SOC – this one called a supplemental statement of the case (SSOC) that includes the additional evidence – or a rating decision, if the additional evidence allows VBA to grant the appeal. This must be done each time you submit new evidence after the SOC. I have seen appeals with four or five SSOCs. Keep in mind, each time you submit new evidence it triggers a new review. It’s like starting all over again in the appeals process. Each new SSOC can add up to 400 days to the appeal, so my best advice is, submit all available evidence to support your appeal when you file your NOD.
On the Form 9, you can request an optional hearing before a judge at the Board, who will decide your appeal. A hearing is not required and will delay a final decision, but if you want a hearing, you can choose a video-teleconference hearing, a travel board hearing at your local RO, or an in-person hearing in Washington, D.C.
If you want a hearing, your best bet is to opt for the video-teleconference hearing, since it can be scheduled much quicker than other types of hearings. This is because you don’t have to travel to Washington, D.C. and you don’t have to wait for a judge to travel to your RO. You still get the benefit of representation and talking to a judge face-to-face – though virtually, like on Skype or on FaceTime.
Once you submit your Form 9, the RO appeals team reviews your appeal to ensure all actions were completed and that it is ready to go to the Board. Once ready, the local RO will certify and transfer your appeal to the Board in Washington, D.C.
In my next piece, we will discuss the appeals process at the Board. But in the meantime, I am happy to answer questions about the RO appeals process in the comments section. Please remember, we cannot answer questions on your specific appeal.
Leaked Document: Nearly One-Third Of 847,000 Vets With Pending Applications For VA Health Care Already Died
WASHINGTON — More than 238,000 of the 847,000 Veterans with pending applications for health care through the Department of Veterans Affairs have already died, according to an internal VA document provided to The Huffington Post.
Scott Davis, a program specialist at the VA’s Health Eligibility Center in Atlanta and a past whistleblower on the VA’s failings, provided HuffPost with an April 2015 report titled “Analysis of Death Services,” which reviews the accuracy of the VA’s Veteran death records. The report was conducted by staffers in the VA Health Eligibility Center and the VA Office of Analytics.
Flip to page 13 and you’ll see some stark numbers. As of April, there were 847,822 Veterans listed as pending for enrollment in VA health care. Of those, 238,657 are now deceased, meaning they died after they applied for, but never got, health care.
While the number is large — representing nearly a third of those listed as pending — some of the applicants may have died years ago. The VA has no mechanism to purge the list of dead applicants, and some of those applying, according to VA spokeswoman Walinda West, likely never completed the application, yet remain on the pending list anyway. West said the VA electronic health record system has been in place since 1985, suggesting some of the data may be decades old and some of those people may have gone on to use other insurance.
About 81 percent of Veterans who come to the VA “have either Medicare, Medicaid, Tricare or some other private insurance,” said West. “Consequently, some in pending status may have decided to use other options instead of completing their eligibility application.”
But Davis disputed West on every point. For starters, an incomplete application would never be listed as a pending application, he said. Beyond that, the health records system West is referring to is just that: general health records, not pending applications for enrollment in health care. The VA has only required enrollment in health care since 1998, he said, and there was no formal application process before that. Davis provided an internal VA chart that shows backlogged applications only beginning in 1998.
As for some Vets having other insurance, Davis said it is “immaterial and a farce” to suggest that means VA shouldn’t be providing Vets with the health care they earned.
“VA wants you to believe, by virtue of people being able to get health care elsewhere, it’s not a big deal. But VA is turning away tens of thousands of Veterans eligible for health care,” he said. “VA is making it cumbersome, and then saying, ‘See? They didn’t want it anyway.’”
At a minimum, the high number of dead people on the pending list indicates a poor bookkeeping process that overstates the number of living applicants — a number that should be closer to 610,000.
This waiting list is unrelated to the VA backlog that made news last year, which left Vets who already had coverage with extremely long wait times. VA press secretary Victoria Dillon told HuffPost the agency has made strides on that front, doubling the number of its appointments from 3.5 million to 7 million since last year.
Davis sent copies of the report to House and Senate committees that oversee Veterans affairs, and to the White House, hoping to spur congressional and presidential action to pressure VA to clear its health care backlog.
A spokesman for the Senate Veterans Affairs Committee did not respond to a request for comment. Eric Hannel, the staff director of the House Veterans Affairs Subcommittee on Oversight and Investigations, said his team is looking into the report’s findings.
“We take it seriously,” said Hannel.
A White House spokesman did not respond to a request for comment.
Davis recently sent a letter to Sen. Johnny Isakson (R-Ga.), who chairs the Senate Veterans Affairs Committee, laying out the problems with the health care backlog. He highlighted that 34,000 combat Veterans are among those listed as pending for health care — none of whom should be on that list since combat Veterans are granted five years of guaranteed eligibility for VA health care.
“They have no business being there,” he said. “These are men and women who served in Iraq and Afghanistan.”
The best thing President Barack Obama can do, said Davis, is force the VA to allow Veterans to upload their so-called DD-214 forms when they apply for health care. The form is a lifelong document that shows a person’s military record. If Veterans could use it to show their eligibility for health care, and if the VA assigned staff to review all of the pending applications, it would clear the logjam in the system, he said.
“The White House has the ability to direct the VA to do this immediately,” said Davis. “That would get rid of the pending eligibility issue.”
This story and its headline have been updated to clarify which VA backlog was revealed in the new document.
WASHINGTON — Veterans rejected for disability benefits will have a new slate of appeals options starting next month, when federal officials will put in place an overhaul the review process with hopes of dramatically cutting down on wait times for the complicated cases.
Last week, Department of Veterans Affairs officials announced they will implement new appeals modernization rules starting Feb. 19. Work on the effort has been underway for more than 18 months, since lawmakers passed sweeping reform legislation on the topic in August 2017.
Under the new rules, Veterans will be given three options for their benefits appeals. All three are designed to streamline the complicated existing process for cases, which can languish for years as new evidence and arguments are introduced throughout the timeline.
Now, VA leaders are hoping the most difficult reviews can still be completed in under a year in the vast majority of cases. Their target for cases which don’t go before the Board of Veterans Appeals is an average of about four months for a final decision.
A successful appeal can mean potentially thousands of dollars in monthly benefits payouts for Veterans who have previously been turned down for what they believe are service-connected injuries and illnesses. VA and Capitol Hill leaders hailed the changes as a long-overdue fix.
“(This) is the most significant reform in Veterans’ appeals processing in a generation and promises to improve the timeliness and accuracy of decisions for our nation's Veterans,” said House Veterans’ Affairs Committee Chairman Mark Takano, D-Calif.
He promised close oversight of the work ahead, but also hope about the potential rewards for Veterans.
Committee ranking member Rep. Phil Roe, R-Tenn., last week visited a regional office in his home state that will be involved in the new appeals process and left feeling confident in its success.
“The VA staff feel really good about this,” he said. “They’re worked out the hiccups they’ve had, and are ready to move ahead. Getting all the training and experience is going to take time, but I walked away optimistic.”
Veterans groups largely supported the appeals overhaul, although a few groups have expressed concerns about the new system limiting Veterans options for future reviews in favor of getting faster answers.
Under the first of the three new appeals processes, Veterans can file a supplemental claim where they introduce new evidence backing their case. The appeal is handled by specialists at a regional office, who render a final decision on it.
In the second option, Veterans can request their case be reviewed by a senior claims adjudicator instead of the regional office. Those experts will review cases for clear errors or mistaken interpretations of statute. If they find mistakes, they can mandate corrections for the cases.
Finally, Veterans will also be able to appeal directly to the Board of Veterans’ Appeals. Those cases are expected to take the longest to process, because of the legal prep work involved. Veterans can get a direct decision or request a hearing before the board.
Portions of the new process have been implemented as pilot programs at select sites in recent months. Previously, cases involved a combination of all three options, with cases reset and repeating steps with every new submission of case evidence.
Veterans with cases currently pending in the system can opt-into the revamped processes starting next month, or remain in the current system if they believe it will better benefit them.
More information on the changes is available through the Veterans Affairs benefits website.
With the federal deficit expected to top $1 trillion this year, the Congressional Budget Office in December published a list of options for reducing the imbalance over the next 10 years, including three suggestions on Tricare and six that address Veterans benefits.
In its Options for Reducing the Deficit: 2019 to 2028, the CBO laid out 121 opportunities for curtailing spending and raising revenue. These include raising Tricare enrollment fees for military retirees, instituting enrollment fees for Tricare for Life and reducing Veterans benefits.
The publication marks the fourth time in five years that the CBO has suggested raising Tricare enrollment fees for working-age retirees and introducing minimum out-of-pocket expenses for those using Tricare for Life.
The CBO suggested that increasing Tricare enrollment fees for working-age retirees -- those under age 65 -- could help slash the deficit by $12.6 billion. To obtain this, it said, the Defense Department should more than double annual enrollment fees for individuals and families enrolled in Tricare Prime and institute annual fees of $485 for an individual and $970 for a family for Tricare Select. Most working-age retirees currently pay no enrollment fees for Tricare Select.
The CBO also suggested instituting enrollment fees for Tricare for Life, the program that serves as supplemental coverage for military retirees on Medicare. Analysts estimated that the Defense Department could save $12 billion between 2021 and 2028 if it adopted annual enrollment fees of $485 for an individual or $970 for a family for Tricare for Life, in addition to the Medicare premiums most military retirees 65 and older pay.
According to CBO analysts, these options would reduce the financial burden of Tricare for Life to the DoD in two ways: It would cut the government's share by the amount of fees collected and indirectly would save money by causing some patients to forgo Tricare for Life altogether, either by buying a private Medicare supplement or simply going without one.
Another option would be to introduce minimum out-of-pocket requirements for those using Tricare for Life. In this proposal, TFL would not cover any of the $750 of cost-sharing payments under Medicare and would cover just 50 percent of the next nearly $7,000.
Retired Navy Capt. Kathryn Beasley, director of government relations for health issues at the Military Officers Association of America, said her organization is concerned that the CBO continues to include health care rate hikes for military retirees in its list of options, which it publishes every few years or so. The CBO also ignored the fact that rate increases went into effect last year, she added.
"CBO does this every year. Our biggest concern is that some of these options would make their way into the president's budget," Beasley said. "With all the changes to the military health care system in the past year, we think we simply need to stabilize Tricare. It's been a lot to absorb."
According to the CBO, the Department of Veterans Affairs also presents several opportunities for cost-savings measures. Some suggestions in the CBO assessment include:
- Narrowing eligibility for disability compensation for seven diseases the Government Accountability Office has said are not caused or aggravated by military service, including arteriosclerotic heart disease, chronic obstructive pulmonary disease, Crohn's disease, hemorrhoids, multiple sclerosis, osteoarthritis, and uterine fibroids. This option would save $33 billion over 10 years.
- Ending the VA's individual unemployability payments to disabled Veterans when they turn 67, the retirement age for receiving full Social Security benefits, which would save an estimated $48 billion.
- Reducing disability benefits to Veterans older than 67 who are receiving Social Security payments. This could save the government $11 billion.
- Eliminating disability compensation for 1.3 million Veterans with disability rates below 30 percent, saving $38 billion over an eight-year period.
The VA option with some of the largest savings potential, according to CBO, would be to end enrollment for the two million Veterans in Priority Groups 7 and 8 -- those who do not have service-connected disabilities and have income above the VA national threshold and below a geographically adjusted threshold (Group 7) or above both thresholds (Group 8). This could save the government up to $57 billion, CBO analysts said.
Finally, the CBO said the federal government could raise revenue by including VA disability payments as taxable income. According to the CBO, if all disability payments were to be taxed, federal revenues during the time frame would increase by $93 billion.
If just Veterans rated 20 percent or less paid taxes on their disability compensation, federal revenues would increase by $4 billion, it said.
CBO analysts say their options only "reflect a range of possibilities" and are not recommendations or a ranking of priorities. "The inclusion or exclusion of any particular option does not imply that CBO endorses it or opposes it," they wrote.