Of all the disabilities listed on the VA’s Schedule for Rating Disabilities, the ratings involving the knee are one of the most difficult for Veterans to understand – and for the VA to get right. Much of the confusion stems from the fact that a Veteran may be able to receive multiple ratings for the same knee, depending on the severity of his or her condition. In previous posts, we discussed ratings for limitation of flexion and extension, instability, and meniscus injuries. Today we are going to discuss the ratings available for knee replacements.
Why Multiple Ratings?
Before we get into knee replacements specifically, it is important to understand why exactly it is that multiple ratings are allowed for the knee. As explained in the previous posts in this series, the “Rule against Pyramiding” and the rule that the VA must maximize benefits for a Veteran work together. This means that separate disability ratings may be assigned to different conditions where none of the symptomatology for the separately rated conditions is duplicative or overlapping. This is particularly important for the knee, where one injury may cause many different issues, and these separate manifestations of that injury may all be entitled to separate ratings.
Total knee replacements are rated under DC 5055. A Veteran will receive a 100 percent rating for a service-connected total knee replacement for 1 year following the implantation of the prosthesis. A 60 percent rating is warranted for chronic residuals consisting of severe painful motion or weakness in the affected extremity. Intermediate degrees of residual weakness, pain, or limitation of motion should be rated by analogy under DCs 5256, 5261, or 5262. The minimum rating for a knee condition status post-knee replacement is 30 percent.
Convalescence ratings (also known as temporary 100% ratings) are an important part of the discussion of total knee replacements. Convalescence is defined as the act of regaining or returning to a normal or healthy state after a surgical operation or injury. The 1 year period for the 100 percent rating under DC 5055 begins after the expiration of any convalescence ratings. For example, a Veteran enters the hospital on 5/20/17 for a total knee replacement and is released on 6/2/17. His convalescence rating will expire on 6/30/17 and his 100 percent rating under DC 5055 will begin on 7/1/17. It is important to note that a Veteran may be eligible for a longer convalescence rating depending on his or her recovery from the surgery. There is no requirement that the Veteran must be confined to his or her home, but there does need to be medical evidence that a longer convalescence is required. The best evidence for this is a note from the Veteran’s doctor. In fact, a Veteran undergoing any surgery for a knee condition should always ask his or her doctor for a note regarding the applicable period of convalescence and be sure to get notes regarding any extensions for that convalescence period. A Veteran can receive extensions for his or her convalescent rating for a total duration of up to 6 months, in increments of 1, 2, or 3 months. After the initial 6 months, a Veteran can receive additional extensions of 1 to 6 months for “severe postoperative residuals” or if he or she has a “major joint immobilized by a cast.” This means that a Veteran can technically have up to 1 year of convalescence ratings.
Once the Veteran’s convalescence period is up, and his 1-year 100 percent rating under DC 5055 is up, the VA will reevaluate the Veteran’s knee and rate the Veteran for any postoperative residuals. Typically, the Veteran will be scheduled for a C&P examination for this purpose. If a Veteran has chronic residuals consisting of severe painful motion or weakness in the affected extremity, he or she should be awarded a 60 percent rating. Unsurprisingly, the term “severe” is not defined in the regulation. Therefore, it is the best practice to always argue that residuals are severe. A Veteran is competent to comment on his or her observable symptoms, so the Veteran should submit a statement detailing the day-to-day residuals and how they affect functioning. As noted in past posts regarding rating knee conditions, a Veteran should submit any lay statements he or she can from people who have witnessed these severe postoperative residuals. A Veteran may also want to have an examination with a private doctor who can comment on the severity of his or her residuals, especially if the C&P examination is not favorable.
As noted above, the minimum rating for a knee condition status post knee replacement is 30 percent. If a Veteran has intermediate degrees of residual weakness, pain, or limitation of motion, the condition should be rated analogously under DC 5256, 5261, or 5262. The symptoms do not need to be exact, just “closely analogous.” It is important to note that the VA cannot require additional criteria when determining the proper rating under DC 5055. For example, they cannot state that a certain limitation of motion or gait alteration is required.
One last important thing to remember is that as of July 16, 2015, DC 5055 applies only to total knee replacements. The previous version of the regulation also applied to partial knee replacements. If a Veteran has a claim for a partial knee replacement that was filed prior to July 16, 2015, DC 5055 will still be applied. For Veterans whose claims were filed after July 16, 2015, they should still argue that a partial knee replacement should be evaluated analogously under DC 5055.
Many student Veterans have been waiting longer than normal for their GI Bill benefits this semester, as the Veterans Affairs Department works through a backlog of claims affecting thousands of students.
Meanwhile, legislation that could have helped these students is stalled in the Senate, and Veteran education advocates, along with some members of Congress, are calling for action.
“There is significant concern about the delayed Forever GI Bill benefit payments,” said Ashlynne Haycock, deputy director of policy and legislation for the Tragedy Assistance Program for Survivors, one of the organizations that helped push the legislation through the House of Representatives last spring. “We all knew there would be a wait, but clearly this extended delay points to the fact that we must get the Senate to move on the SIT-REP Bill … to protect students and Veterans.”
The legislation, which passed the House unanimously in May, would require schools to adopt a policy stating they will not deny access to classes or facilities, impose late fees, or make students pay out-of-pocket because of unpaid balances, as long as the student has provided a certificate of eligibility for VA benefits.
This would ensure that no GI Bill users are punished by their schools because of VA processing delays. But since the legislation hasn’t passed, some organizations say their members are being charged late fees or barred from registering for next semester’s classes.
The bill, which has also garnered the support of Veterans of Foreign Wars and the American Legion, was referred to the Senate Committee on Veterans’ Affairs in late May, but there has been no movement on it since. A staffer for Committee Chairman Sen. Johnny Isakson, R-Ga., said their office has reached out to Veterans’ groups and schools impacted by these policies and is currently working through the legislation.
Rep. Phil Roe, R-Tenn., chairman of the House Committee on Veterans Affairs, said he urges his Senate colleagues to quickly pass the bill and President Trump to sign it into law.
“This legislation is critical to protecting our student Veterans from situations like the one we (currently) face,” Roe said in an email.
As of Wednesday, the VA has 120,000 education claims pending, most of which are for Post-9/11 GI Bill payments, a spokesman for the agency said in an email. Approximately 1,200 claims have been pending for 60 days or more.
Original claims for first-time GI Bill users are taking an average of 33 days to process, and supplement claims are averaging 23 days, which is higher than the VA’s goal to process these types of claims in 28 and 14 days, respectively. One reason for the backlog is that the VA is still working to get its technology systems up to date with the new Forever GI Bill law, which was supposed to change how housing stipends are calculated for GI Bill users starting Aug. 1.
“VA education benefit claims processing employees are working mandatory overtime, and VA has augmented its processing workforce by 202 people to help reduce processing times," the spokesman said. "With these measures in place we are processing an average of more than 16,000 claims per day.”
He said the VA expects to get the overall number of outstanding education claims under 100,000 in early November.
It’s difficult to determine just how common it is for schools to penalize students whose VA payments don’t come in by their deadlines. In a recent Military Times survey of around 500 colleges and universities, the vast majority of colleges said they have special policies for students whose VA or Defense Department education benefits are delayed. In many cases, these policies protect students from incurring late fees or being dropped from classes for nonpayment.
In a letter to schools last week, VA Director of Education Service Robert Worley asked that campuses not penalize students if they have not received tuition and fee payments from the VA.
“Late payments are likely due to VA processing delays and certainly are not the fault of the student. We ask for your patience as we work to resolve the ongoing challenges," he wrote. “If your school is waiting for tuition and fee payments for GI Bill students, we respectfully urge you to continue to work with the students so they may continue their academic pursuits.”
The results of a recent VA customer survey indicates Veterans and their families continue to experience high customer satisfaction in burial and memorial services for Veterans and families from the U.S. Department of Veterans Affairs (VA)’s National Cemetery Administration (NCA). 98.2 percent of all respondents saying they were satisfied with their experience at the national cemetery. For Veterans not buried in a VA national cemetery, VA provides headstones, markers or medallions to commemorate their service. For more information, visit the National Cemetery Administration website.
What Is a Fully Developed Claim?
The Fully Developed Claims (FDC) program is an optional initiative that offers Veterans and survivors faster decisions from VA on compensation, pension, and survivor benefit claims.
Veterans and survivors simply submit all relevant records in their possession, and those records which are easily obtainable, such as private medical records, at the time they make their claim and certify that they have no further evidence to submit. VA can then review and process the claim more quickly.
Many Types of Claims
There are many types of claims for disability compensation. For example, if you're filing a VA claim for the very first time, you have an original claim. A reopened claim means you have new and material evidence and you want VA to reconsider a claim it once denied. There are also new claims, secondary claims, and special claims.
To learn more about which type of claim you may have and the evidence and forms you need with your submission, view the Claims and Evidence page. Your claim must meet all the applicable requirements listed to be considered for the FDC program.
Who Can File an FDC?
Veterans may file an FDC for disability compensation for the following reasons:
- An injury, disability, or condition believed to have occurred or been aggravated by military service.
- A condition caused or aggravated by an existing service-related condition.
Veterans and their families and survivors may also file pension or dependency and indemnity compensation (survivor) claims at these pages:
Why Use the FDC Process?
FDC puts you in control, and it's faster and risk-free.
By filing an FDC, Veterans and survivors take charge of their claim by providing all the evidence at once. By then certifying that there is no more evidence, VA can issue a decision faster.
File an FDC without risk. Participation will not affect the attention your claim receives from qualified VA rating staff or the benefits to which you're entitled. If VA determines other non-federal records exist and are required to decide a claim, VA will simply remove the claim from the FDC program and process it through the traditional claims process. Once you initiate your FDC, you'll have up to one year to complete it. Should VA approve your claim, you'll be paid back to the day you initiated your claim.
What's the Best Way to File an FDC?
- The best way to file an FDC is electronically at eBenefits.va.gov. Once you log on to your account, VA recommends you appoint an accredited Veterans Service Officer to help you initiate your claim, gather the required medical records and evidence, and submit your claim. If you don't yet have an eBenefits.va.gov account, register today.
- If you prefer to file your FDC by paper, complete VA Form 21-526EZ and visit your local regional office. You can appoint an accredited Veterans Service Officer to help you prepare and submit your claim. You can also appoint your accredited Veterans Service Officer online at eBenefits.va.gov.
How Should I Prepare My FDC?
- Register for an eBenefits.va.gov account.
- Next, appoint an accredited Veterans Service Officer who can provide free, expert assistance.
- Gather relevant documents, such as private medical records. While VA will obtain Federal records on your behalf, such as your DD-214 or service medical records, submitting them, if you have them will save time. If you believe there is not a notation in your service record describing your disability, submit letters from friends or those you served with that tell us about the facts of your claim ("buddy statements").
- Initiate your claim at eBenefits.va.gov or call 1-800-827-1000 for assistance.
VIRGINIA BEACH, Va. (WAVY) -- 10 On Your Side is helping Veterans prepare for a new rule that goes into effect on Thursday, Oct. 18.
According to the U.S. Department of Veterans Affairs, pensions will change beginning Thursday for those of you using long-term care services.
Shannon Laymon-Pecoraro, a lawyer with Hook Law Center, says failing to plan is planning to fail when it comes to these changes.
"In a region like ours that is home to so many military Veterans, we think it’s important to tackle this issue head-on so people can start to address these changes before they take effect," Laymon-Pecoraro said.
Laymon-Pecoraro is referring to Veterans like Frank Rough, a retired senior chief who served in Vietnam.
"I planned all my life for retirement and to have that possibly taken away so I could have Veterans benefits is crazy," said Rough.
Rough is talking about changes that could make it more difficult to qualify for certain important benefits, according to Hook Law. That's why Rough and other Veterans attended a Hook Law seminar regarding the changes.
The VA pension program is a needs-based benefit for wartime Veterans who served at least 90 days active duty service, who have limited or no income, who are 65 and older and who may have a permanent and non-service connected disability.
What's at risk? According to Hook Law, aid and attendance pension up to $2,170 per month for a Veteran and spouse -- which is money that could be used for long-term care.
With the new rules, assets cannot exceed $123,600 to get the long-term benefits.
According to the seminar presentation, gifts that you made in the past 36 months -- either to a family member or to an irrevocable trust and an investment in an annuity -- would be penalized with the new rules.
This means you could be prohibited from qualifying for VA pension benefits for up to five years, depending on the amount of the gift.
"I'm getting older and I may need long-term care and if I go into long term care and they start taking the money I've saved - that's awful," said Rough.
So, what should you do between now and Oct. 18?
Laymon-Pecoraro said, "Assess are there any significant transfers you want to make or any assets you want protected so that you can then qualify for this benefit if you think you may need within the next 3 to 5 years."
It is important to note this change does not affect all Veterans.
According to Hook Law, if you are receiving VA service-connected disability or compensation payments, your benefits will not be affected.
There are several different approaches the VA can take to reduce benefits. Of course, the possibility of a rating decrease is heavily dependent on whether the case is protected or unprotected.
The Requirement of Sustained Improvement
If a rating has stabilized or continued at the same level for five years or more, the VA must show that all evidence of record indicates a sustained improvement in the disability. This means the medical history for the disability in question must be considered when reviewing records for a possible rating reduction. If the VA cannot show sustained improvement, it cannot reduce a Veteran’s rating.
The VA must also review the entire record of examinations to determine whether such examinations are full and complete. If not, they may not be considered in a VA rating reduction.
If the disability has shown temporary or episodic improvement, it cannot be reduced unless all evidence clearly shows sustained improvement. The VA must also consider whether the material improvement shown “will be maintained under the ordinary conditions of life.”
The Requirement of Fraud
If a Veteran’s disability has been rated at the same level for 20 or more years, the VA cannot reduce it unless it can show that the disability rating was based on fraud.
The Requirement of Material Improvement
When the VA considers reducing a 100% rating (including TDIU based on individual or combined rating), it must determine whether there has been a material improvement in the physical or mental condition evaluated at 100 percent. An examination is necessary for the VA to do this.
Additionally, if the Veteran has experienced material improvement on a schedular rating, VA must still consider whether he or she qualifies for TDIU.
Even if a Veteran’s rating has not been in place for five years or more, the Court of Appeals for Veterans Claims has established the following:
- Proposed reductions must be based on review of the entire history of the Veteran’s disability.
- The VA must make a determination as to whether there has been an actual change in the disability.
- Improvement in the disability must be shown in the Veteran’s ability to function under the ordinary conditions of life and work.
- Examinations reporting any such improvement must be thorough.
DUE PROCESS PROTECTIONS
When the VA determines a rating reduction is proper, due process protections apply. The VA must provide prior notice to the Veteran of the proposed reduction. The Veteran must be given 60 days after the notice to submit evidence to rebut the proposal (the 60-day notice requirement is not enforced in cases where the Veteran’s compensation will not be altered as a result of the reduced rating).
The Veteran also has a right to a predetermination hearing, which must be requested within 30 days of notification of the proposed VA rating reduction. The proposed reduction, if implemented, would not take effect until after this hearing has taken place.
In the event a Veteran receives a proposed VA rating reduction, it is important to provide any and all evidence to fight the VA’s proposal. If the VA schedules an examination, attendance is critical. Failure to do so will result in an automatic reduction.
Veterans Serving Veterans
If the VA unfairly reduces your rating, don’t give up. There are many ways to fight this decision. One of them is hiring a Veterans’ law attorney.
With many Veterans counted among our attorneys and staff, we know firsthand the struggles service members face when they return home with injuries and disabilities. Our firm has worked closely with Veterans for fifty years and we have recovered millions of dollars in back pay awards.
Different government programs have different Veteran criteria
There is no standardized legal definition of "military Veteran" in the United States. Veteran benefits weren't created all at one time. They've been added one at a time for more than 200 years, and each time Congress passed a new law authorizing and creating a new Veteran benefit, it included eligibility requirements for that particular benefit.
Whether or not one is considered a "Veteran" by the federal government depends upon which Veteran program or benefit one is applying for.
Veterans' Preference for Federal Jobs
Veterans are given preference when it comes to hiring for most federal jobs. However, in order to be considered a Veteran for hiring purposes, the individual's service must meet certain conditions.
Preference is given to those honorably separated Veterans (this means an honorable or general discharge) who served on active duty in the Armed Forces. Retirees at or above the rank of major or equivalent are not entitled to preference unless they qualify as disabled Veterans.
For more information about the Veteran's Preference Hiring Program, see the Federal Government's Veteran's Preference Web Page.
Home Loan Guarantee
Military Veterans are entitled to a home loan guarantee (within dollar limits) when they purchase a home. While this is commonly referred to as a "VA Home Loan," the money is not actually loaned by the government. Instead, the government acts as a sort of co-signer on the loan, and guarantees the lending institution that they will cover the loan if the Veteran defaults. This can result in a substantial reduction in interest rates, and a lower down payment requirement.
For more information, see the VA's Home Loan Guarantee Web site.
Burial in a VA National Cemetery
To qualify as a Veteran for the purposes of burial in a VA National Cemetery also depends on the conditions and period of service. Any member of the Armed Forces of the United States who dies on active duty is obviously eligible.
Any Veteran who was discharged under conditions other than dishonorable is usually eligible as well.
Service beginning after September 7, 1980, as an enlisted person, and service after October 16, 1981, as an officer, must be for a minimum of 24 continuous months or the full period for which the person was called to active duty (as in the case of a Reservist called to active duty for a limited duration) to qualify for VA National Cemetery burial.
Undesirable, bad conduct, and any other type of discharge other than honorable may or may not qualify the individual for Veterans benefits, depending upon a determination made by a VA Regional Office. Cases presenting multiple discharges of varying character are also referred for adjudication to a VA Regional Office.
For more criteria for burial at Arlington National Cemetery can be viewed on the VA's National Cemetery's Web Site.
Military Funeral Honors
The Department of Defense (DOD) is responsible for providing military funeral honors. "
Upon the family's request, every eligible Veteran receives a military funeral honors ceremony, to include folding and presenting the United States burial flag and the playing of Taps. The law defines a military funeral honors detail as consisting of two or more uniformed military persons, with at least one being a member of the Veteran's parent service of the armed forces.
For more information, see the DoD's Military Funeral Honors Web site.
Active Duty Montgomery GI Bill
In all cases, the ADMGIB expires 10 years after discharge or retirement. To be eligible, one must have an honorable discharge. To retain MGIB benefits after discharge, in most cases, one must serve at least 36 months of active duty, if they had a four-year active duty contract, or at least 24 months of active duty, if they signed up for a two or three-year active duty contract (there are some exceptions to this rule).
For complete details, see our ADGIB Article.
Post-9/11 GI Bill
If you have at least 90 days of aggregate active duty service after September 10, 2001, and are still on active duty, or if you are an honorably discharged Veteran or were discharged with a service-connected disability after 30 days, you may be eligible for this VA-administered program. See details.
Service-Disabled VA Life Insurance
To be eligible for basic Service-Disabled Veterans Insurance (S-DVI), a Veteran must have been released from active duty under other than dishonorable conditions on or after April 25, 1951. He/she must have received a rating for a service-connected disability and must be in good health except for any service-connected conditions. An application must be made within two years of the granting of service-connection for a disability.
For complete details, see the VA Life Insurance Web site.
VA Disability Compensation
Disability compensation is a benefit paid to a Veteran because of injuries or diseases that happened while on active duty or were made worse by active military service. It is also paid to certain Veterans disabled from VA health care.
The amount of basic benefit paid varies depending on the nature of your disability. Note: You may be paid additional amounts, in certain instances, if:
- you have very severe disabilities or loss of limb(s)
- you have a spouse, child(ren), or dependent parent(s)
- you have a seriously disabled spouse
For complete information, see the VA's Disability Compensation Web site.
VA Disability Pension
Disability Pension is a benefit paid to wartime Veterans with limited income who are no longer able to work.
You may be eligible if:
- you were discharged from service under other than dishonorable conditions
- you served 90 days or more of active duty with at least 1 day during a period of wartime. (However, anyone who enlisted after September 7, 1980, generally has to serve at least 24 months or the full period for which a person was called or ordered to active duty in order to receive any benefits based on that period of service)
- you are permanently and totally disabled, or are age 65 or older
- your family income is below a yearly limit set by law
VA Medical Care
The Veterans Health Administration (VHA) provides a broad spectrum of medical, surgical, and rehabilitative care to eligible Veterans.
If you have a discharge other than honorable, you may still be eligible for care. As with other VA benefits programs, the VA will determine if your specific discharge was under conditions considered to be other than dishonorable.
The length of your service may also matter. It depends on when you served. There’s no length of service requirement for:
- Former enlisted persons who started active duty before September 8, 1980, or
- Former officers who first entered active duty before October 17, 1981
The number of Veterans who can be enrolled in the health care program is determined by the amount of money Congress gives VA each year. Since funds are limited, VA set up priority groups to make sure that certain groups of Veterans are able to be enrolled before others.
For more information, see the VA's Health Care Web site.
All this week on Stateside, we're looking at why more Michigan Veterans aren't getting the help they may be entitled to from the VA. The state has consistently ranked in the bottom five states and territories when it comes to helping Veterans and their families access federal VA benefits.
Part of the problem is that the state doesn't have enough accredited Veteran service officers. These are the experts who help Vets navigate all the red tape in the VA's complex application process.
Michael Smith is the director of the Washtenaw County Department of Veterans Affairs. He served a collective 21 years in the U.S. Army and is now an Accredited Veteran Service Officer. He joined Stateside to talk about the challenges that many Veterans face when navigating the application process for federal benefits.
Nearly 600,000 Veterans live in Michigan. There are around 135 Veterans service officers at the county level, which Smith says is not nearly enough. He says that this shortage is part of the reason why Michigan ranks 48th in the nation when it comes to Veterans receiving federal benefits.
"If a Veteran or a survivor or a dependent has nowhere to go to talk to someone who can advise them, and council them on benefits, and then assist them in the process of applying for those benefits, then they won't do it," Smith said.
Listen above to hear Smith talk about what the Michigan Veterans Affairs Agency (MVAA) could be doing to better support Veterans, and his advice for Veterans seeking help with determining their own potential VA benefits.
One of the major aspects of developing a disability claim with the VA is gathering and submitting relevant evidence to help support it. The VA has what is called a duty to assist, however, it can be extremely beneficial to also gather your own evidence during the claims process. By submitting various forms of evidence, you provide the VA with more information and different angles for them to view your case. The type of evidence you should consider submitting will depend greatly on the disabilities that you are experiencing and at what step of the process you are at.
Types of Evidence
Service Records/Service Medical Records
When trying to initially get your claim service connected, you have to show an in-service event that led to your disability. The easiest way to prove this in-service event is with your service records and medical records, if the event is documented. Whether it is a physical injury, or a mental one, having it documented in your service records can be a huge stress reliever when it comes to managing your VA claim. If the in-service event is not documented in your service record, don’t give up on your claim! There are other pieces of evidence that can be used to help prove your claim.
Service records can also be beneficial when you need to prove you were in a certain location during a specific time period. For example, for the VA’s presumptive illnesses, you may need to show that you were in Vietnam or Thailand between 1962 and 1975, or that you were stationed at Camp Lejeune between 1953 and 1987, or even possibly that you served in the Southwest Asia Theater during the Gulf War. Your service record should contain any documents that show what units you were assigned to and the location of each. These documents can include, but are not limited to, orders, travel vouchers, re-enlistment paperwork, and awards.
Expert Medical Opinions
Medical opinions can be useful, whether you are trying to show service connection for a disability, or if you are requesting an increased rating. Medical opinions allow for an outside doctor to review your claims file and meet with you to discuss your disabilities, symptoms, and the limitations you suffer because of it. They can provide the VA with a detailed medical account to show diagnosis and severity.
When filing for increased compensation based on unemployability, it is required to disclose your employers of the last five years that you actually worked. By giving the VA the employer’s name and address, it allows them to send the employer a form to verify when you worked there, your total income earned, the type of work you did, and anytime you lost due to illnesses. Basically, they are verifying all of the information that you included on the form 21-8940, but they want to hear it from the employer. You can expedite this step by sending your previous employers a form 21-4192 when you first file for individual unemployability.
Buddy statements can be helpful at any point in your process with the VA. If you are trying to get service connected or receive a higher rating, a buddy statement can prove to be your best piece of evidence. Generally, buddy statements will come from close family members or friends who have witnessed your disabilities and the change they have caused in your life. Buddy statements can also come from fellow service members, and can be beneficial if you are trying to prove a specific location or an event in service. They can help to corroborate the facts to the VA and provide an additional outlook on your situation.
Deck logs can be vital to a Navy Veteran’s claim, especially when they need to show that they were part of the Brown Water Navy, serving within the inland waterways of Vietnam. For these Veterans, the deck logs for their ship during the time they were deployed to Vietnam can be requested and used to show on what days their ship was inland and what specific bay or waterway they were in. Deck logs can also be used to help prove a stressor that may have occurred on board on the ship. For example, if there was an active shooter on the ship and a Veteran developed PTSD and is now trying to get it service connected, the deck logs can be used to prove the incident occurred and provide the details of the situation.
If you are trying to obtain additional compensation for your dependents, there is also evidence required for these benefits to be granted. When you file for dependents with the VA, you must complete a form 21-686c. With this form, you list any current and prior marriages, as well any prior marriages of your spouse. You also list any children who may qualify for benefits. To prove you have a spouse, you may be required to submit your marriage certificate and any prior divorce decrees. To claim children, you may be required to submit their birth certificate, so it is helpful to know where these documents are and have them ready to avoid further delay with the VA.
In the summer of 2017, President Trump signed into law the Appeals Modernization Act establishing a new process for the VA in the way they handle benefit processing. The Act is designed to improve timeliness, provide more transparency, and be fairer in an effort to improve benefits for Veterans. The Act is expected to go into effect in February 2019.
RAMP, the Rapid Appeals Modernization Act, is an invitation for Veterans to enter into the program earlier than the February 2019 date and gives two options for Veterans to participate, either the Supplemental Claim or a Higher-Level Review Claim. As of April 1, 2018, all Veterans who have a claim on appeal are eligible to participate in RAMP. However, the question is, should you?
Supplemental Claim Lane
The Supplemental Claim Lane is designed specifically to allow Veterans to submit new evidence to support their claim. The VA is under obligation to provide “Duty to Assist” by law with these appeals. In order to be eligible, a Veteran must have an active appeal for a disability claim at one of the following levels:
- Have filed a Notice of Disagreement (NOD);
- Have filed a VA Form 9 (Appeal to the Board of Veteran’s Appeals – BVA)
- Have been certified to the BVA; or
- Have a remand from the BVA.
Veteran’s can “opt-in” by sending in a signed opt-in form which allows them to transfer their claim to the RAMP program and submit new and relevant evidence in support of the claim. The longer it takes for the new evidence to be submitted, the longer it will take for a decision to be made. The VA is stating they expect to complete supplemental claims within 125 days.
New and Relevant Evidence
One of the big questions is what exactly “new and relevant” evidence is. The terminology is different than what the VA required previously; new and material evidence, and no ruling has yet to be made on what makes “material” different from “relevant.”
Material evidence was defined previously as “relevant and related to an unestablished fact necessary to prove the claim. It must have a legitimate influence or bearing on the decision, and cannot be cumulative or redundant.” In the legal world, material evidence is offered to prove an issue is true.
Relevant evidence seems like it should be the same as material. However, in the legal world, relevant evidence must be material or have probative value, which means it must show the issue is more or less likely true, it does not necessarily have to prove anything. This seems like a lesser degree of weight required for evidence, but again, there is no official ruling by the VA as of yet. This is actually more in line with the VA’s policy of siding towards the Veteran, but is still something we will be watching closely as decisions are rendered.
Once a claim has been denied due to evidence not being new and relevant, an appeal will come forth to request a definition from the VA. However, we are still waiting on definitions for and clarification on so many other legal terms used by the VA, it may be years before a clearer understanding of the difference in required evidence is made.
One of the most important things to remember is to gather all your evidence PRIOR to opting into the RAMP Supplemental Claim Lane. The VA still has to develop evidence at their end, and waiting to submit evidence after you have opted in will only slow things down.
What Can Be Submitted as New and Relevant Evidence?
First, the evidence must be new, something the VA has not seen before that is not redundant or a repeat of records already reviewed. For example, new records from treatment provider showing the same diagnosis will not be considered new, but records showing an increased level of severity or a new diagnosis concerning the same issue will be considered new. An independent medical evaluation is considered new evidence. Relevant means, for the sake of this article, that it has to do with the issue(s) on appeal. Filing evidence of a psychiatric diagnosis is not relevant to a back condition, unless there is a diagnosis of pain syndrome that is causing the mental health condition. In other words, the evidence submitted must be linked to the condition on appeal, even if it is a secondary condition due to the original issue claimed.
Evidence can come in many forms:
- Lay evidence: a statement from a non-professional that attests to the Veteran’s behaviors or physical conditions that has not been previously submitted and the VA has no previous knowledge of. For example, on a PTSD claim, submitting a statement from a parent stating how the Veteran’s behaviors have changed from prior to service compared to after service.
- Medical treatment records: from a treatment provider, private or the VA, that includes new information such as a new diagnosis, an increased level of severity, or a secondary diagnosis related to the issue on appeal.
- Independent medical opinion: an opinion from an objective provider who has nothing to gain from or investment in either the Veteran or the VA. The provider is presented with documented evidence of the claim, the same evidence the VA has reviewed, and provides their unbiased opinion of the facts.
- Service Records/Service Medical Records: Any service records the VA has not already reviewed that have new evidence of the issue such as treatment records showing the Veteran received treatment for the condition in service where no records had been reviewed prior or of an event that is related to the condition. This can also include the service records of other service members who served with the Veteran. For example, if a Veteran is appealing a denial of PTSD and another service member in their unit received a purple heart for being injured while they were stationed together due to an IED, that would be new and relevant evidence.
As with any new program, there are always bugs to work out. The VA’s claims of decisions in 52 days are not coming to light as of yet for most Veterans, and many are not meeting the 125 day deadlines either. Ask your representative or attorney to review everything before you submit it because as the laws are written to make things faster and simpler, they seem to always make them more complicated.