f-eye-doo-SHE-er-ee

Noun.

I’ve written before about the VA’s Fraudiciary Program, and the rampant abuse of Veterans, theft of their money, fraud, and criminal malfeasance that occurs in this VA Program.

Well, it is now official – no branch of the US Government has any desire to stop these problems.  The [...]]]>

Fiduciary.

f-eye-doo-SHE-er-ee

Noun.

I’ve written before about the VA’s Fraudiciary Program, and the rampant abuse of Veterans, theft of their money, fraud, and criminal malfeasance that occurs in this VA Program.

Well, it is now official – no branch of the US Government has any desire to stop these problems.  The Executive Branch has done nothing since this horrific program was instituted 30-40 years ago.  Even the “pro-Veteran” legislators in the US House and Senate have  shown that they don’t plan to do anything to fix the VA Frauduciary program.  And now, with the opinion of the Court of Appeals for Veterans Claims, the Judicial Branch weighs in on its lack of power to fix the problems.

What is the VA’s Frauduciary Program?

Here’s what the law says: if the VA determines that you are mentally incompetent to manage your own finances, it will appoint a “Fiduciary” to handle the Veterans Disability Compensation Payments.   The VA Fiduciary is paid a percentage of your disability compensation benefits to manage this money for you – so you don’t spend it on, you know, the things you need to live.

Here’s how it works in reality.  The VA, based on an elaborate scheme that opens the door for kickback opportunities, appoints a Frauduciary of its own choice.  Some of these Frauduciaries are convicted criminals, drug abusers, embezzlers – basically crooks.

Yeah, I’m sure there are a couple good ones, but many of them are hucksters and snake-oil salesmen, preying on Veterans to make a few bucks.

After being appointed, your money becomes theirs, the VA doesn’t investigate anything and the Vet is essentially pick-pocketed – all with a “wink and a nod” from the VA.

Take the case of Mr. Mimms, a Vietnam Combat Veteran.  Here’s what his “Fiduciary” (allegedly) did to him over a 13+ year period (my attorneys tell me I have to say “allegedly”):

1. (Allegedly) Took $3,218.48 from the Veteran claiming a “catchup fee” for years the Frauduciary (Allegedly) didn’t get paid in the past.
2. (Allegedly) sold the Veteran a life insurance policy using (Allegedly) the Veteran’s money – guess who (allegedly) got the commission? (Allegedly), the Frauduciary.
3. Made (allegedly) false claims to the (alleged) VA to (Allegedly)  control of more of the Vet’s money to  support the (alleged) Frauduciary Family Chronic Illegal Drug Habit.
4. (Allegedly) Failed to pay the Veteran’s child support, resulting in the Veteran (actually) losing his driver’s license and (actually) going to jail.
5. (Allegedly) Failed to Pay the Veteran’s rent and storage bills.
6. (Allegedly)Withheld dependent benefits from the Veteran’s wife.
7. (Allegedly) Failed to pay the cable bill.
8. (Allegedly) Lowered the Veteran’s monthly spending allowance without (Allegedly) authority from the VA.
9. (Allegedly) Stopped paying the Veteran’s car payment.

What was the VA’s response?

1. (Allegedly) One of the fiduciaries that took a bunch of the Veteran’s money never existed
2. (Allegedly) Refused to tell the Veteran or his attorney anything about his money or how it was being used
3. (Allegedly)Threatened to sue the Veteran’s attorney for harassment
4. (Allegedly) More stuff like that (Use your imagination, it’s the VA we’re talking about here)

So, the Veteran’s attorney goes to the Court of Appeals for Veterans Claims asking for one tiny little thing for the Veteran: a Court Order directing the VA Regional Office to issue a decision determining whether or not he is competent to manage his own money – if the VA decides this, he gets control of his money again.

(You should know that the Veteran asked the Court for some really outlandish relief on top of this:  an investigation into his multiple Fiduciaries’ actions and an Order compelling the VA to return the money misused by the Frauduciaries).

Reading its decision, the Court stated that it was “troubled” by the Frauduciary Program, saying:

“A brief review of the background information recorded by the Court above reveals a history of relationships between the petitioner, his [Frauduciaries], and VA officials that have been generally dysfunctional and often poisonous….The Court’s concern about VA’s [Frauduciary] system extends to the agency’s ability to thoroughly and impartially investigate misuse allegations raised by incompetent veterans. The Court is particularly troubled that, despite the Secretary’s assertions, there is little evidence that VA thoroughly considered the multitude of circumstantial evidence indicating serious abnormalities and perhaps criminal malfeasance in the relationship between the petitioner and the [alleged crack-snorting, money-stealing Frauduciary]“.

* Words that appear in brackets like these [  ] are my words, not the Court’s.  These words are too troubling to use in a Court decision.

Having said all that, the Court did …. drum roll… absolutely nothing.  Here’s what they said:

“The Court’s suspicions and concerns, however, are not adequate reasons to grant extraordinary relief.”

Now that’s what I call “Troubling”.

Note: The decision was authored by Judge Carol Wong Pietsch, appointed to the Court of Appeals for Veterans Claims by President Obama in 2011.  She first the first Asian-American woman  to reach the rank of Brigadier General in the U.S. Army.

Since July 2010, combat veterans diagnosed with PTSD have not had to corroborate their stressor event to get disability compensation from the VA.

That’s because a Federal Regulation – 38 C.F.R. 3.304(f)(3) for you regulatory law geeks – says that if a veteran’s PTSD stressor relates to the Veteran’s “fear of hostile military or terrorist activity” and a VA psychologist (or psychologist that contracts with the VA) corroborates the stressor event, the Combat Veteran didn’t need to corroborate his [...]]]> I’m not kidding.

Since July 2010, combat veterans diagnosed with PTSD have not had to corroborate their stressor event to get disability compensation from the VA.

That’s because a Federal Regulation – 38 C.F.R. 3.304(f)(3) for you regulatory law geeks – says that if a veteran’s PTSD stressor relates to the Veteran’s “fear of hostile military or terrorist activity” and a VA psychologist (or psychologist that contracts with the VA) corroborates the stressor event, the Combat Veteran didn’t need to corroborate his stressor.

That’s  a good thing, right?  Absolutely!

It lightens the evidentiary burden of proof for Veterans who are in combat, because we all know that the “Combat Gnomes” don’t document each and every event that occurs in war.

Well, one Veteran who was either sexually assaulted or raped by a superior officer (you read that right — an officer) thought that he should be entitled to the same burden of proof as a combat veteran.

[There's a bill in Congress right now - the Ruth Moore Act - that proposes just this solution].

What was the Veteran’s reasoning? Well, when the VA issued the regulation that became 38 C.F.R. § 3.304(f)(3), it included the VA’s thoughts about how it would interpret the regulation, in the future:

“…th[e] regulation is not limited to events or circumstances perpetrated by a foreign enemy,” that “fear of hostile military or terrorist activity . . . is not limited to any particular class of individuals,” and that the examples in the subsection are “to illustrate what qualifies as an event or circumstance, not a defining restriction.”

That makes sense, right?  This argument was advanced by the Veteran’s attorney Ken Carpenter.   Ken has spent 30 years as a Veterans’ Advocate, and in my opinion, he is one of the smartest Veterans’ Attorneys I’ve ever met.

Well, the Federal Circuit Court of Appeals didn’t want to extend the lowered burden of proof to the half-million (or more) soldiers that have been raped or sexual assaulted while serving in the military (the “PC” term for this is Military Sexual Trauma).

To keep that from happening, they had to narrowly read the regulatory language  ”hostile military or terrorist activity”, and this is what they said:

“Read in context of the subsection’s use of the word ‘hostile’, those examples indicate that the “event or circumstance” must have been part of terrorist activity (which is innately hostile) or part of enemy military activity (since only enemy, not friendly forces, are hostile)….We therefore conclude that § 3.304(f)(3) can apply only if a veteran’s claimed in-service PTSD stressor relates to an event or circumstance that a veteran experienced, witnessed, or was confronted with and that was perpetrated by a member of an enemy military or by a terrorist…..(“[T]he examples provided [in subsection (f)(3)] all involve actions originating from individuals who commit hostile military or terrorist acts toward the U.S. military, not nefarious, or even criminal, acts of one service member directed at another service member.”).”

My first comment is more sarcasm than legal insight or analysis. Is rape not “innately hostile”?  If Al Qaeda just raped a group of innocent civilians  instead of killing them, would that qualify as terrorism, or no?

Maybe I’m missing something in this decision, but Judge Prost doesn’t seem to address the legislative intent of this law – to lower the burden of proof for those that had PTSD as a result of “combat”.

She also doesn’t appear to afford deference to the VA’s own interpretation of the regulation, cited above. If the VA says “regulation is not limited to events or circumstances perpetrated by a foreign enemy”, most Courts MUST give that interpretation deference.  You law students out there will recognize this as the principle of “Chevron Deference” – the bane of your existence once you become licensed.    If I had a nickel for every bizarre Agency regulatory interpretation the Fed Circuit has given deference to in the last 25 years, I could buy my way into run for Congress and stir up some real trouble.

For the civilians out there:  for the last 21 centuries, the generally accepted thinking it takes at least 2 armies to have “combat”.  Combat is insanely chaotic and it isn’t always easy to tell which army  is which, or to keep from dropping bombs on your own people.  The focus of the Court’s analysis should not have been on who committed the hostile act – but the context in which the hostile act occurred (i.e., war).

I worry sometimes that our Courts have simply just lost touch with reality – meaning the real world that us 99%’ers live in.

I looked up the bio of the Judge that wrote this decision: U.S. Federal Circuit Court Judge Sharon Prost.  She has an impressive Ivy League education, and spent a lot of time as a lawyer with various Executive Branch and Congressional Agencies, Boards, and the like ( – all  inside the Beltway it seems) until President Bush appointed her to the bench in 2001.   I’m not sure it’s relevant, but Judge Prost did not serve in combat, nor does she appear to have served in the military. (Although, having been an attorney in the IRS, I could make a good argument that working there is like combat).

So let me ask the Vets that have been in combat, particularly the ones that have been injured by Friendly Fire: do you think your injury at the hands of your own country was combat, or no?

(Here’s a link to the decision if you want to read the Court’s mental gymnastics yourself).

You can watch the full 8 hours of testimony by clicking here.

Women and men in the military face the very strong likelihood that they will be  raped or sexually assaulted while in the military.  In [...]]]> The Joint Chiefs were up on the Hill earlier this week, talking to the Senate Armed Services Committee about the huge problem of rape and sexual assault in the military (the DoD and VA have “niced” this up by inventing the term “Military Sexual Trauma”).

You can watch the full 8 hours of testimony by clicking here.

The Issue.

Women and men in the military face the very strong likelihood that they will be  raped or sexually assaulted while in the military.  In 2012, 26,000 military service members were raped or sexually assaulted. This is up from 19,000 in 2011.  1 in 3 female servicemembers are raped or sexually assaulted while in the military.

This problem passes through to the VA, as well. 1 in 3 claims for PTSD due to a rape or sexual assault are granted, at an average impairment rating of 10% – 50%. Compare that to combat related PTSD –  1 out of every 2 claims for PTSD due to combat experiences are granted, at an average impairment rating of 70-100%.

The issue has come to a head, and 2 Bills are currently before Congress:

1)  Ruth Moore Act. Passed the House on June 4, 2013, is now before the Senate. This bill would alter the burden of proof for PTSD resulting from rape so that it is very similar to the burden of proof for Veterans with combat-related PTSD.  In other words, victims of rape don’t have to corroborate their rape if their treating physician says that their PTSD is because of rape).

2) National Defense Authorization Act.  Simplistically stated, this is the bill that funds the Department of Defense.  Some Senators have proposed a  ”markup” to the NDAA called the Military Sexual Assault Prevention Act of 2013. This act would do a few things:

- Require the Secretary of Defense to retain restricted reports of sexual assault for at least 50 years.

- Establishes  policy regarding the disposition of sexual assault cases through courts martial;

- Prohibit service in the Armed Forces by individuals previously convicted of a sexual offense.

Ultimately, the best solution is to do what every other First World and Civilized Country in the world already does:  modify the UCMJ to remove jurisdiction to prosecute rape from the Chain of Command and give it to private civilian authorities (i.e., District Attorneys and prosecutors).

What the Chiefs said.

The Chiefs didn’t really have much useful to say – they seem to feel that things are getting better and that they have all the tools they need to fix the problem of rape and sexual assault in the military.

The Chiefs hung their hat on two issues: “evidence” and “chain of command”.

As to the issue of evidence, the Chiefs seem to believe that the  problem with rape in the military isn’t that it happens, or that the Commanders don’t investigate allegations or intimidate accusers or don’t punish the Sexual Predators.  They believe that the problem is that there isn’t enough evidence in these “MST” cases.

The problem with this analysis is (and I saw things go down this way many times when I served in the Army) is that any time there is an allegation of rape or assault, if the alleged perpetrator denies it, it becomes a “he said, she said” and the Commander believes that there isn’t enough evidence. When there is evidence, the commanders often blame the victim for putting himself or herself in the path of a horny young troop by wearing clothes* or drinking.  Worse still, there are a LOT of Commanders and NCOs in the military today that believe that women who raise allegations of rape aren’t objecting to the violent physical invasion of their body as much as they are trying to wreck a man’s career.  Yes, this attitude is still prevalent.

In the end, the Chiefs want us to believe that prosecuting male soldiers charged with sexual assault and rape  is too “complicated” to be handled by civilians.

The Chiefs really want to keep authority for making decisions as to guilt/innocence and punishments with the unit commanders.  They believe that their Commanders are given so much authority and power that they have demonstrated that they can play the roles of prosecutor, defense and judge/jury.  I wish one of the Senators would have pointed out that we don’t let Unit Commanders perform appendectomies on their troops, so why are we trusting them with important legal decisions about rape?  In my opinion, the Chiefs fail to recognize that Commanders should stick to what they are best at: soldiering and war-fighting.

The Chiefs really didn’t seem to grasp the idea that the folks committing rapes and sexual assaults are anything more than  ’horny young men’ –  I don’t think they “get” that rapists in the military are  violent sexual predators who want only to dominate other men and women – it isn’t about sex.

Listening to the language in this testimony, I heard a lot of military double-speak.  I heard talk of “Command Climate”, “Morale, Health and Welfare” issues, “Task Forces”, etc.  Its too bad that there aren’t more Congressional that actually served in the military – they might have heard something very different in the Chiefs’ testimony.

For example, I heard this comment:

One Joint Chief said:  ”Soldiers are engaging in High Risk behavior coming out of conflict.”

TRANSLATION: Young men coming home from war just want to have sex really bad.  Women are engaging in high risk behavior  and putting themselves in harm’s way by  wearing clothing*  or  having a drink of alcohol around soldiers coming home from war.

This attitude, more than anything, is the reason that commanders do not need the authority to adjudicate rape by or of a service-member.

I’ll post my thoughts on the Ruth Moore Act after the Senate holds hearings on that Bill. Can’t wait to see how much smoke the VA blows Congress’s way in these hearings.

* Women in the military can’t win. If they wear any clothing that shows any skin, they are accused of inviting sexual approaches from men. If they wear a PT Uniform, that’s being sexually suggestive as well.  God forbid a female soldier wears makeup – many commanders believe that by doing so, a female soldier is giving the male a “Green Light” to rape.

Here are 8 things to think about after you’ve won your claim.

1) Safeguard Past-Due Benefits.

Many veterans find themselves with a substantial sum of past-due benefits – often ranging from tens to hundreds of thousands of dollars. Many veterans haven’t dealt with large sums of money before, and so they make a couple of mistakes.

First, they tell [...]]]> So the moment has arrived…after years of doing battle with the VA on your disability compensation claim, you got the award letter in the mail.

Here are 8 things to think about after you’ve won your claim.

1) Safeguard Past-Due Benefits.

Many veterans find themselves with a substantial sum of past-due benefits – often ranging from tens to hundreds of thousands of dollars. Many veterans haven’t dealt with large sums of money before, and so they make a couple of mistakes.

First, they tell everyone how much money the VA paid them.

Second, they rush out and spend the money.

I advise my clients not to tell family and friends about the amount of past-due benefits unless they need to know to help render assistance.  Money causes tension – inside the family more than anywhere else.  Unless a family member is a caregiver or your spouse or your accountant, and needs to know how much money for some reason to help you, there’s no need to tell them.

I don’t think there’s any  need to run out and immediately pay off the house.

Yes, your bills have been piling up, and you need to take care of those.

After that, set aside an emergency fund with some of the money, and set up a cushion of 2-3 months of living expenses in case something really bad happens.  Put the rest in an interest-bearing and low-risk account for 90 days.  Talk to several financial planners and tax planners – you don’t need to spend gobs of money to do this – and get an idea what your options are.

There are a lot of folks that prey on people who have come into “new money” – most of them having to  do with some sort of insurance or pyramid marketing scheme. Don’t fall for it. Put your money in a secure savings vehicle, and let it cool while you figure out your options.

2) Direct Deposit.

Sign up for Direct Deposit through the VA – a form should be included in your award packet.  You can also sign up over the phone: call 800-827-1000 and wait for the prompts.

Direct deposit ensures that you will get your benefits automatically deposited to your bank account, and you don’t have to worry about “lost checks” from the VA. Remember, these clowns lose your paperwork all the time – don’t be surprised when they “lose” a paper check.

3) Sign up for VA Health Care.

If you were just granted service-connection, you are likely entitling to some degree of VA medical care.  Even if you don’t want to use the VA Medical Care, enroll now. It’s easier to do it now, for one thing. Second, if some thing catastrophic happens, you want to have the option to get medical care through the VA instead of being charged $26.00 for an aspirin by a private hospital.

Did you know that if you have private insurance, and seek care at the VA Medical Center, in most cases, you can’t be “balance-billed” ? The VA will submit the claim, and if your insurance only pays a portion of it, they can’t bill you for the difference.  I’m not saying you should do this – just letting you know it’s an option to consider.

4) Sign up for Additional Benefits.

There are additional benefits that you should start researching:  Vocational Rehab, Education Benefits, Life Insurance, Automobile and Housing Adaptation Grants for Mobility Access, and so on.

One of my biggest regrets was not taking advantage of the VA Voc Rehab program when I was in Law School.  Instead of getting VA assistance for things like paying for the Bar Exam, I am sitting on a mountain of law school debt.

Benjamin Krause – a Friend of the Attig Law Firm – knows his stuff when it comes to secondary education and VA Voc Rehab.  Not only does he use the program himself, but he’s written a Voc Rehab Survival Guide.

5) Research State Benefits for Disabled Veterans.

Most, if not all, states have benefits for disabled Veterans.  The qualifications for State Veterans Benefits vary from state to state, but examples of benefits range from property tax reductions to free hunting licenses.

In Texas, for example, disabled Veterans can apply to their Tax Appraisal District from a reduction in their property tax based on the percentage of their disability.

6) Appeal for the correct Effective Date and/or Challenge the Impairment Rating.

Don’t forget to make sure that the VA granted the correct Impairment Rating and Effective Date.  In about 10% of the cases I’ve seen, the VA has gotten the Effective Date correct.  If you aren’t sure, contact an attorney to do a claim review to see if the VA established the correct effective date.

Another area that the VA repeatedly messes up is Special Monthly Compensation (SMC) – it is one of the hardest areas of VA law to “get”, so I’m not too hard on the VA for messing it up. However, SMC could add anywhere from $93 – $2000 or more dollars to your monthly benefits check — and increase the past-due amounts that the VA owes you.

7) File claims for increase.

Did your condition worsen while the claim was pending?  In theory, the impairment rating should be based on the most up-to-date medical records and assessments available. However, the VA takes so long to issue a decision after a Compensation and Pension Exam that many conditions can worsen during that same time period.  File a claim for increase as soon as you believe your condition has worsened.

And don’t forget  - if you are hospitalized for your now service-connected condition, you might be eligible for a temporary total disability rating (100%).

8)Tell the Attig Law Firm – we love good news.

Seriously – whether we worked with you or not, tell us!  We hear so many stories of bad experiences with the VA that we love to hear it when a Vet wins. Shoot us an email, or post a note on our Facebook Page.

I’d  love if you’d take this ANONYMOUS survey to help us understand what works and what doesn’t work on the website.

Thank you!

Here’s the link to the Attig Law Firm Website Survey

Blogs are a powerful tool.  They have the ability to raise awareness of particular issues. [...]]]> For the past week, Turkish citizens have been protesting their government’s increasingly authoritarian actions.  The government’s reaction was unnecessarily violent.  During the protests, the Turkish government jammed social media so the protestors would have difficulty communicating their plight to the outside world.  Protestors turned to Blogs – like this one – to get the word out about the plight of Turkish citizens fighting for their democracy.

Blogs are a powerful tool.  They have the ability to raise awareness of particular issues.  They can foment social change.   They can pressure politicians to make a change.

These are the very things that Veterans need right now: awareness of a  broken benefits system, a desire for change in the American public, and pressure on our federal politicians to make those changes.

Given those facts, one would think that Veterans – particularly OIF/OEF Veterans from the “social media generation” would be blogging about their problems with the VA, the difficulties they face in getting quality healthcare and access to benefits, and about the problems they face in Winning Their Peace.

But no – they aren’t out there.

I spent 10 minutes this morning looking for blogs by Veterans or for Veterans.  I excluded blogs like mine, that are associated with a business, organization, “cause”, or product (while these blogs do inform Veterans they are not true blogs).  I excluded blogs that were merely fronts for selling a product to Veterans.  I excluded blogs which haven’t had a new post in  2 or more years.

Here are the blogs that I found (If you know  of a Veteran writing a blog, email me and let me know. I’d love to follow it.):

Of Pirates and Pups:  This is a blog by the spouse of a Wounded Warrior who served in OEF in Afghanistan.  She writes of the struggles her family – and other military and veteran families – face. (The link appears in our blog roll, to the right)

Returning Combat Veterans:  This is a blog that appears to tell the stories of soldiers making the transition from battlefield to civilian life.  It is sporadically updated, but has a nice layout and flow. 

That’s it – 2 blogs in 10 minutes of searching. By contrast, spend 10 seconds doing a Google Search for Down Syndrome Blogs and see the results that come up instantly.

Ironically, the most prolific blog was the Department of Veteran Affairs Propaganda Blog – where the VA tells the story of the (cough) great job that they are doing for our returning combat veterans.

In the social media war, it appears that the VA is winning.

Why aren’t there more Veteran bloggers?  Why aren’t more Veterans using social media to tell their story?

I’d love to hear your thoughts.  Post them here, on Facebook, or Google Plus.

While there are 2 legal processes to pursue an earlier effective date, there are several legal theories that can be used in those processes. Here are 2 of the most common legal theories to argue for an Earlier Effective Date in a VA Disability Compensation Claim.

1.) Reopen your claim, and prove service connection, based on military [...]]]> In a previous post, I talked about the only 2 legal processes through which a Veteran can raise a claim for an Earlier Effective Date.

While there are 2 legal processes to pursue an earlier effective date, there are several legal theories that can be used in those processes. Here are 2 of the most common legal theories to argue for an Earlier Effective Date in a VA Disability Compensation Claim.

1.) Reopen your claim, and prove service connection, based on military service records or service medical treatment records.

This is one that the VA hates.  Here’s how it works.

You, the VA, or any third party discovers service records or service medical records that were not previously included in the VA C-File.  38 CFR 3.156(c) requires that the VA reconsider any previously denied claim to which those records might apply.

If those records lead to a grant of service-connection for a previously denied claim (even if finally adjudicated), then 38 CFR 3.156(c)(2) contains the following requirement:

“An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim;”

The VA hates 3.156(c).  In fact, they commonly “overlook” this basis for an earlier effective date when Veterans find new military service records or military treatment service records.

2.) Show that the VA should have granted an earlier claim date based on the “implicit denial” doctrine.

The VA doesn’t have to go digging through your file to find every viable claim. However, if a claim is “reasonably raised” by the record, then the VA’s failure to address it could be considered an “implicit denial” of that claim.

Here’s how that might work.  A Vietnam era Veteran who served at NKP in Thailand files a claim for service-connection due to Agent Orange exposure.   He tells the VA that he has  Diabetes Mellitus Type II.  To confirm the diagnosis of Diabetes, the VA receives medical records from the Veteran’s treating physician.   The treating physician’s records are replete with diagnoses of an ischemic heart disease.  However, in the ratings decision, the VA fails to address the ischemic heart disease, even while granting Service-Connection for the Diabetes based on Agent Orange Exposure.

A claim like this might be “reasonably raised” by the record.  In fact this scenario occurs very frequently.  While granting one claim, the VA turns a blind eye to a fairly obvious claim in the record that the Veteran may or may not have specifically asked for.  Most commonly this occurs with secondary conditions – conditions that the medical record clearly indicates are caused by the service-connected condition.

This happens because the bureaucrats deciding VA claims have little or no medical knowledge or training, and are punished for thinking outside the box.

The BVA and the CAVC are going to look at a couple factors in analyzing the implicit denial doctrine:  relatedness of the claims, the timing of the claims, whether the ratings decision (or other adjudication of the Veterans Benefits claim) refers to the condition in a way that suggests it was denied, and whether the Veteran was represented or acting pro-se.

Remember, there are only 2 paths to an Earlier Effective Date – a CUE claim (or a Motion to Revise the Effective Date based on Clear and Unmistakeable Error), and as a legal basis in a current and pending appeal.

*****

Read this Important Disclaimer about this Blog.

The Veteran was a highly decorated helicopter pilot in Vietnam.  He was awarded  3 Distinguished Flying Crosses (DFC),  the Air Medal, Air Medal with ”V” device,  the Vietnamese Cross of Gallantry w/Silver Star, and a BronzeStar).

After returning home and leaving the military service, our client was diagnosed with a Motor Neuron Disorder in 1995.  His condition was, [...]]]> Congratulations to our client, a decorated  Vietnam Combat Veteran, who recently was awarded 100% service-connection for a motor neuron disorder that was related to his military service.

The Veteran was a highly decorated helicopter pilot in Vietnam.  He was awarded  3 Distinguished Flying Crosses (DFC),  the Air Medal, Air Medal with ”V” device,  the Vietnamese Cross of Gallantry w/Silver Star, and a BronzeStar).

After returning home and leaving the military service, our client was diagnosed with a Motor Neuron Disorder in 1995.  His condition was, at various times in its progression, diagnosed as either/both ALS (aka, Lou Gehrig’s Disease) or PLS (aka, Primary Lateral Sclerosis).

[Medical Note: Motor neuron diseases are not distinct disease entities - they are a continuum.  Upper motor neurons are located in the brain.  Lower motor neurons are located in the spinal cord.  When a Motor Neuron disease impacts the lower motor neurons, it is called PMA, or Progressive Muscular Atrophy. When the Motor Neuron Disease affects the upper motor neurons, it is ALS, or amyotrophic lateral sclerosis. When the Motor Neuron Disease affects both upper and lower motor neurons, it is called PLS, or Primary Lateral Sclerosis. This is important - if you are a veteran with PLS or PMA that also affects the upper motor neurons, this is medically speaking the same disease entity as ALS].

In 2000, the Veteran asked the VA to consider whether his Motor Neuron Disorder was related to his military service, and if so, to grant him disability compensation.  They said no.  For 9 years, this Veteran battled the VA.  Time after time, the answer came back no.

In 2008, the VA issued a rule that said that the law will presume that ALS (Lou Gehrig’s Disease) was caused by military service, no matter how long after service the condition is diagnosed.  Our client thought he’d finally get help from the VA.

The Veteran was wrong: no help was coming.

In 2008, the VA denied his claim again. This time, the played a “shell game”, and said that he never had ALS.  After all, they said, his condition was called PLS.

What’s the difference?  If you ask the doctors, in this Veteran’s case, there was no difference.  His Motor Neuron Disorder presented as affecting both upper and lower motor neurons, and as far as they were concerned, it was the same disease entity: a Motor Neuron Disorder that was both ALS and PLS.

By the time of his denial in 2008, the Veteran was about done with the VA.  He filed a Notice of Disagreement and hired the Attig Law Firm.

The Attig Law Firm’s approach to the case was this: regardless of the label you put on this Veteran’s medical condition, it was the same disease entity as ALS – and ALS is always presumed related to military service for any eligible Veteran whenever it is diagnosed.

Ultimately, an expert in Motor Neuron Disorders explained this to the BVA and the VA Regional Office, and the Veteran was service connected for ALS.

The thing about this case – and what Congressmen, the Judges in the Court of Appeals for Veterans Claims, and most Americans just don’t get it – is that the law says one thing, and the VA Bureaucracy applies it in a completely different way.

First, the typical VA benefits claim requires only one doctor’s opinion to establish nexus between a diagnosed condition and military service.  This case  took no less than FOUR doctor’s opinions – 3 private doctors (one of whom is a specialist in Motor Neuron Disorders)  and one VA C&P Doctor – to prove to the VA what it should have been able to figure out and decide 13 years ago.

Second, if you are diagnosed with ALS anytime after military service, the law presumes it is related to your military service.  This Veteran needed a lawyer, 4 medical doctors, at least 2 VA Raters, a DRO, a BVA Judge, and 13 years to grant what the law says is an open-and-shut VA Benefits claim.

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A Veteran seeking an effective date for entitlement to VA benefits that is earlier than the one found by the VA has only two options [...]]]> Effective Dates are a really important part of a Veterans Disability Compensation Claim. They govern how much the Veteran receives in past-due benefits, and they can often be a determining element in other types of benefits the Veteran would want to make, such as survivor benefits and pensions, and state property tax exemptions for disabled Veterans.

A Veteran seeking an effective date for entitlement to VA benefits that is earlier than the one found by the VA has only two options depending on the status of the adjudication assigning the effective date.

Option 1: If the decision assigning the effective date has not become final, the claimant may file a direct appeal challenging the effective date.

Decisions on effective dates become final when a deadline to respond passes without a response from the Veteran. For example, here are 3 of the biggest reasons that claims become final (these are not the only ways, just the big ones):

* 1 year after the Ratings Decision, unless a NOD is filed

* 60 days after the date of the Statement of the Case (SOC) unless a VA Form 9 is timely filed

* 120 days after the date of a BVA Decision, unless an appeal to the Court of Appeals for Veteran’s Claims is filed.

Option 2: If the decision assigning the effective date has become final, the only means by which a claimant may obtain an earlier effective date is by a collateral attack on the regional office or the decision of the Board of Veterans’ Appeals that assigned the effective date. That collateral attack is done through what is called a “CUE” claim, or a Claim to revise an Effective Date based on Clear and Unmistakeable Error.

CUE Claims are some of the hardest claims that a Veteran can make, for 2 reasons:

1)  A CUE claim requires a  specific kind of error .

The error must be so clear that reasonable minds could not differ in reaching a particular conclusion, and one where the result would have been manifestly different but for the error.  A CUE claim is often not a claim involving interpretation of fact (although it can be); more commonly it is an administrative failure to apply the proper statutory and regulatory provisions to the correct and relevant facts.

2) CUE Claims have to meet special pleading requirements.

CUE Claims can be raised at the Regional Office or at the Board of Veterans Appeals (BVA). Depending on where and when it is raised, there are certain things you need to include.  This is one of the rare instances in a VA Disability Compensation Claim where the Veteran is best served by a claim that pleads with specificity.

I’d like to write more about CUE Claims – but they are really tricky, and I don’t want to mislead anyone by thinning the explanation out for a Blog Post.

It is best if you contact a Veterans Benefits attorney that has experience with CUE Claims; you can always ask the Attig Law Firm for a free case review on your CUE Claims.

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We’ve received 2 Ratings Decision last week (May 2013) in which the VA included this new NOD (Notice of Disagreement) Form.  I had heard it was coming – Tom Murphy (one of the VA higher-ups in the VA Compensation and Pension Program) gave a presentation to Veteran’s attorneys back in April in which he mentioned it.

Here it is:    2013 Notice of Disagreement

It’s too early to tell if this form [...]]]> Here we go, folks, another “band-aid” for the broken claims process.

We’ve received 2 Ratings Decision last week (May 2013) in which the VA included this new NOD (Notice of Disagreement) Form.  I had heard it was coming – Tom Murphy (one of the VA higher-ups in the VA Compensation and Pension Program) gave a presentation to Veteran’s attorneys back in April in which he mentioned it.

Here it is:    2013 Notice of Disagreement

It’s too early to tell if this form will be better than just using a letter or a VA Form 21-4138.  Only time will tell.

What’s nice about this form is that it does seem to streamline things for the Veterans and the federal bureaucrats that process the NODs.  Consistency can be good. However, I think that Ralph Waldo Emerson’s thought on consistency is particularly poignant here.

The big concern I have about the VA’s new form for filing a Notice of Disagreement is this: it seems to set the Veteran up for limiting his/her appeal. What do I mean by that?

When you get your Ratings Decision from the VA Regional Office, you are hacked about one aspect of the decision, so you immediately check all the right blocks on this form, seal it up in the envelope, and send it off to the VARO.

10 years later, you consult with an attorney, and find that the VA failed to address a particular aspect of your claim (implicit denials are very, very common) or that the VA Rating Board botched your impairment rating or effective date in a big way.

What’s the end result?  You didn’t check the right block on this new Notice of Disagreement form, so you’re stuck with the error.  Now, I’m not saying that is the way this new form will be used.  I hope that it helps the Dept of Veterans Affairs improve their claim and appeal processing time.

Until then, always do this: have an attorney look over your Ratings Decision.  Request a consult, or have the attorney do a case review. Only then can you be sure that you are going to catch the VA’s mistakes.  (Ask the DAV for a case review, and they’ll look at you like you have a tomato for a head and then ask you for your dues).

Here’s how a REAL Notice of Disagreement should read: Sample Notice of Disagreement