Most disputes typically revolve around disagreements between the Department of Veteran Affairs (the VA) and the veteran about the vet’s level of disability after an injury and how much the disability is worth. In 2006, eight hundred thousand (800,000) vets nationwide applied for benefits. Currently, it has been widely reported that the VA expects to consider more than one million (1,000,000) claims.
Due to this backlog, your claim will take a significant amount of time to process. And, most claims will be denied due to technical errors and non-meritorious claims. About seventy (70) percent of all claims which are pending have been filed by veterans who are already receiving a disability rating and who are receiving existing benefits.
When a new claim is filed, you should understand the claim process. Under the veterans’ benefits system a veteran or eligible dependent is required only to submit a plausible claim for an entitlement to VA benefits. Once a plausible claim has been submitted, the burden to fully and completely develop evidence to support that claim is by federal law upon the Department of Veterans Affairs. Since most claims are not fully developed by the veteran, the VA has mountains of paperwork to complete. This paperwork creates a log jam resulting in years of backlog in processing each claim.
A written claim may be submitted at any one of the Regional Offices of the VA. Once a claim has been submitted, the Regional office is required to render a decision. The decision is only made after a fully developed consideration of the evidence. The veteran will receive a written notice of the decision. But, remember that this decision can take years. This notification of action will only inform the veteran that the claim has been granted or denied.
If the claim is denied, a Statement of the Case (known as an “SOC”) is required by law to explain to the veteran the reason for the denial of benefits. The SOC should provide notice to the veteran of the pertinent or controlling statutes and regulations relied upon by the Agency to support the decision to deny benefits. The SOC will inform the veteran that in order to perfect an appeal of a denial of benefits, the veteran must execute and submit the appropriate form. This form (VA Form 9) will be included in the mailing from the Regional Office with the SOC.
In order to perfect an appeal for review of a denial of benefits by a Regional Office, the veteran must file both a Notice of Disagreement, and a VA Form 9. This is a two-step appeal process. Completing the first step and omitting the second step will not result in a perfected appeal. The VA Form 9 must be filed either within 60 days of the receipt of the SOC, or within one year of the Notice of Action by the Regional Office denying the claim, whichever is later.
VA law is voluminous. Not only are there substantive statutes, regulations and rules which apply to veteran benefits, but there are procedural rules which control the claim process.
The filing of an appeal is a complex matter. For example, the veteran has a number of planning options when the veteran receives a denial letter from the Regional Office. First, the vet may decide simply to abandon the claim. Or, if the vet wants to take further action, the vet can file a new claim. Or, the vet can make an informal appeal by requesting a Service Review Officer review at the Regional Office. Another option is the vet can submit new and material evidence to reopen the claim. Finally, the vet can file a formal appeal to the Board of Veterans Appeal in Washington, D.C.
The ALG Law Group Can Help You With Your Appeal
Our law firm can guide a veteran through this process to determine how best to respond to the claim denial. The ALG Law Group can analyze your benefit denial and review all the options with you to determine the best course of action. Our lawyers can review the Statement of the Case and determine if there are any clear and unmistakable errors. A clear and unmistakable error is a collateral attack on a final un-appealed claim. It is easily raised but a rare finding. Other examples are statutory and regulatory provisions still in existence at the time were incorrectly applied, or an error of fact or law that reasonable minds would not differ, & had the error not been made, the outcome would have been manifestly different.
Allegations of these types of errors must be pled with specificity. They must be based upon records and law in existence when the decision was made and results in revision or reversal of the prior decision.
Steps You Can Take to Protect Your Rights of Appeal
You should consider keeping our law firm aware of all your VA correspondence. Also, how quickly you act is important. You only have a limited amount of days to act in exercising your appeal rights. There may be steps we can take to help you with a claim pending at the Regional Office. If your claim can be fully developed, by the veteran (as opposed to having the VA develop the claim for you) we can help speed up the time it takes for the VA to review your case.
Contact Us For A Consultation
Jacksonville: 904.374.2136 Fax: 904.615.6391
Q. How do I know that I qualify for Improved Pension?
A. The VA will require that physician fill out a form establishing that the claimant requires daily assistance from others in order to dress, bathe, cook, eat, or leave home. The claimant does NOT have to require help in ALL these areas. There simply must be adequate medical evidence that the claimant cannot function alone. This can result in the veteran receiving an Aid and Attendance allowance.
Q. How do I know that I qualify for Housebound?
A. A physician’s statement is also required for Housebound. The VA will automatically consider if it the claimant does not fully qualify for an Aid & Attendance allowance. The criteria for Housebound require that the claimant need regular assistance and must be in a protective environment.
Q. How do I know that I qualify for Basic Pension?
A. A veteran who served in the military 90 days, one of which was during the eras that was considered a wartime period is eligible for a basic pension if he meets the net worth and income criteria. The same is true for the surviving spouse.
Q. Is there a look back period for Improved Pension?
A. No, the VA looks at the assets in hand the day the forms are filed.
Q. I am my father’s Power of Attorney; how is that handled?
A. The VA does NOT recognize a Power of Attorney (POA) unless they have approved the individual for that designation. If you are simply a POA for convenience purposes, it is much quicker to have your parent manage and sign the forms themselves. If your parent is not capable of managing his/her own affairs in that manner, then the VA will want to set up interview with you in order to determine if you are the appropriate fiduciary for the claimant.
Q. What happens if my claim is denied for excessive income?
A. Denial is often only the beginning of the process. You then have one year to collect receipts on your medical expenses. At the end of that year you file what is known as an Expense Verification Report (EVR) – a two-page sheet that establishes your income and expenses for the year. If the VA reviews it and determines that you are now eligible for the pension, you will receive a lump sum check, retroactive back to the date you originally filed.
Q. Can I send the claim to any VA office?
A. No, the claim package must go to the Regional VA Office that serves the area in which the claimant resides. Do not send claim packages to VA medical centers or other facilities. They must go to the regional office that serves your region.
Q. My mother is applying for the surviving spouse’s Death Pension. Does she need to have a marriage license?
A. Actually, she needs the marriage certification, not license. The certificate establishes that the wedding did indeed take place. If you cannot find the certificate, you may need to contact the Clerk of Courts office in the county where your parents were married. You do need to have this document so the VA can establish that your mother has a legitimate claim to the benefits earned by your father’s service.
Q. My father was married before he married my mother; does the VA need any of that information?
A. Yes, you will need to provide the following: where the marriage took place, when, to whom, what date it ended? Where? And how? The VA needs to be able to establish that the previous marriage ended through the appropriate legal channels in order to establish the legitimacy of your mother’s claim to the benefits.
Q. What portion of assisted living expenses is considered deductible?
A. If the VA determines that the claimant is deserving of Aid & Attendance or Housebound benefits, then ALL of the costs are deductible. The VA Operating Manual states: “Allow all reasonable fees paid to the facility as long as the facility provides some medical or nursing services for the disabled person. These services do not have to be furnished by a licensed health professional.”
Q. If my mother sells her house before moving into Assisted Living, does she have to count that money as income?
A. No, it does not count as income, but as soon as she puts it in the bank, it will become part of her net worth. If your mother has plans to sell her house, then it is always best to take care of these issues before applying for VA Aid & Attendance benefits. How she disperses the money from the sale is between her and her financial advisor, but any money she retains in savings accounts, CDs, IRAs will be considered part of her net worth. As previously noted, there is no look back on Aid & Attendance.