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How to Win Your VA Claim – Video

CCK hosted a Facebook Live broadcast about how to submit a really effective VA disability claim. We covered everything from the elements of service connection to finding the right filing form. Read the full post here.

 

VIDEO TRANSCRIPTION

Zach: Good afternoon everyone. My name is Zach Stolz. I’m an attorney at Chisholm Chisholm & Kilpatrick. Two of my colleagues are joining me today. Michelle DeTore, who is an accredited claims advocate with Chisholm Chisholm & Kilpatrick and Jonathan Greene who is one of our senior associates at CCK. Both of them have a wide range of experience with VA law. And today’s topic is how to win a claim before the Department of Veterans Affairs. And we’re going to discuss several subjects with that as we go along with our day and have a conversation with our two very qualified experts that are joining me and I will chime in if necessary at all. To get started, a little bit of background about the VA compensation system I think would be helpful for the people that are listening today. So Michelle, what is VA compensation and how is it different from other VA benefits?

Michelle: Sure. So VA compensation is a benefits program that is established to compensate veterans for disabilities, diseases or injuries that are related to their military service.

Zach: So compensation is a little bit different because VA– when people think of VA, I think that it is very common and very understandable to think first of the health care system because there are VA hospitals all throughout our country. The VA benefits – or the VA health system is a huge bureaucracy and a huge system. It serves millions, literally millions of veterans and patients. The VA compensation system, however, is a little bit smaller than the health care and it’s not really based in the hospitals or things like that. It’s more direct money that the government provides for service-connected and other disabilities. Is that right?

Jonathan: That’s right. The compensation is money paid directly to veterans who are disabled and that their disabilities are causally related to their military service as opposed to pension which is also money. But the disability pension is paid out to veterans who are disabled but their disabilities are not necessarily related to their military service. Compensation, the disabilities have to be service-connected, meaning somehow causally related to their military service.

Zach: And VA has another– has a wide range of benefits available. They have burial benefits, for example. There are benefits payable to surviving spouses. There are home loan programs. But today’s subject is going to be more narrowly focused on just the VA compensation system. And with that said, the way to earn VA compensation is by proving that you have a service-connected disability. So it’s a jump off for whoever want it. Can you define what a service-connected disability is and what is service connection broadly?

Jonathan: Well, one way to think about a disability that is service-connected is that it is somehow causally related to their active duty military service. Where it gets complicated is there’s a number of ways to get service connected. The most common and the one that we’re going to focus on a little bit today is what we call direct service connection. But there are a number of ways to get certain disability’s service connected meaning, VA is recognizing that that disability is somehow causally related to their military service. And then they will evaluate the level of severity. And as a result, will pay the veteran according to the level of severity. So if you want to talk about–

Zach: Can I stop you there, Jon? How does that work? When you say pay according to the level of severity, how does VA do that?

Jonathan: Well, the first step is getting service connected. Once a veteran is service connected for a disability, that’s a good point. That’s the first victory for the veteran’s claim. The next step is VA is going to assign a disability rating for the level of severity of that condition. Generally speaking, they want to compensate veterans for the average impairment in earning capacity. So this does have a relationship with their ability to work. And the disability rating is theoretically on a scale of how disabled that veteran is in a relationship to their ability to work. So generally speaking, the scale is going to be 0 to 100. So a 100% disability rating basically means the veteran is unable to – is so severely disabled that they cannot work. A 0% disability rating– which is possible to get a 0% disability rating– means that you have a disability. It is deemed related to your active duty military service but it’s not compensable, meaning it has no impact on your ability to work or the average impairment in earning capacity.

Zach: Can we talk a little bit before we get to the part where it is rated, can we run through the quick elements of service connection? And this is a good time for me to reiterate, this Zach Stolz from Chisholm Chisholm & Kilpatrick. I’m with Jon Greene and Michelle DeTore. If you have any questions, please feel free to type them into the comments section and we will do our best to answer them. With that said, let’s run through the elements of service connection. So in order to get to the point where you get that 10% rating or that 20% rating or that 100%  rating, in order to even get to that point, you have to have service connection and there are three elements that are required for that. So Michelle, can you run through those real quick and give a little short synopsis of them please?

Michelle: Sure. So the theory for service connection we’re talking about right now is direct service connection. So they were part three elements and by they, I mean the VA and the first element is that you have a current diagnosed disability. The second element is that there was an event or injury in service. And the third element is that there is a medical nexus or medical opinion linking the diagnosed disability to the event or injury in service. Those are usually the three elements that you need in order to establish service connection on a direct basis.

Zach: And the event in service, when you talked about that second part, the event in service, it doesn’t have to have been caused by service. I think that’s a common misconception that a veteran has to have been wounded or a veteran has to have been in combat or something like that. It can arise coincident with service, right?

Michelle: Yes.

Zach: So it’s something that while you’re training or something like that can–

Michelle: Yeah. We see cases sometimes where a veteran was playing basketball out with his fellow service members and had an injury where they fell and they injured their knees. And because it happened in service, it’s now related to service and therefore subsequently service connected.

Jonathan: And you said– that’s exactly right. So coincident with service, so it happened while the veteran was in service. So it can be something that is a traumatic event that is completely unrelated to their service that happened to them that caused, for example, post-traumatic stress disorder. So there is no need or requirement for it have been so called the military’s fault.

Zach: Right. And you also have to– in order to be eligible for VA compensation, since we’re talking about kind of the basics part of this, your discharge has to have– it has to be qualifying as well. So you have to have an honorable discharge from the service, is that right, too, and–

Jonathan: Well, it’s something other than dishonorable to qualify for VA compensation. That’s right.

Zach: And where do veterans file claims for VA compensation?

Michelle: Typically, they file them with the VA Regional Office, if you’re filing a claim. However, you actually need to mail your documentation to the Evidence Intake Center. About a few years ago VA went paperless. They have a scanning facility located in Janesville, Wisconsin. So they upload your file into VA’s corporate systems and they associate it through a VA electronic claims site.

Zach: And are you able to do that online at va.gov?

Michelle: You can actually do it– veterans have access to E-benefits and you’re able to upload your application, from my understanding, through that.

Zach: Okay. And once this claim is filed, who evaluates them? So you talked about how a veteran will file a claim either on paper or they’ll send their information to the place at VA where it’s supposed to be sent. And this information is available at va.gov. And it’s also available at CCK, in CCK’s website which is a time for me to plug. Please, all of the people that are listening, we encourage you to subscribe to our YouTube channel from Chisholm Chisholm & Kilpatrick where you can find information like today’s session, information on appeals reform and information on basically all things VA compensation related. So please subscribe to that and watch the space for new updates from Chisholm Chisholm & Kilpatrick. So once this claim gets filed, the evidence goes in. Who’s going to evaluate it? Who’s going to make a decision on it because it sounds like someone’s needs to judge the service connection thing first and then they’re going to need to assign a rating, if any. So who’s going to do all that?

Jonathan: So just to back up a little bit, when a veteran files a claim for disability compensation, as Michelle stated, they should file it with their local VA Regional Office. But then also submit it to the Evidence Intake Center. That claim should be filed on VA’s Form 526 or the 526EZ which is actually a comprehensive form. It requires a lot of personal data to be provided. And then asks for information specific to what is the claim. Is it a claim for service connection for specific disability, things like that. So that gets submitted and then it’s going to be assigned to a station, to the local Regional Office and then it will end up on the desk of most likely a VSR, a Veteran Service Representative, who is going to be the initial adjudicator of the case. They’re going to look at the form. They’re going to evaluate what evidence is necessary to help them make the decision on whether or not to grant or deny the benefit or some combination thereof. And then they’re going to go ahead and adjudicate it. So as far as who is deciding the claim, generally speaking, it’s going to start with– from my understanding, it’s going to start with the Veteran Service Representative at the local Regional Office.

Zach: This is Zach Stolz from Chisholm Chisholm & Kilpatrick joined by Jon Greene and Michelle DeTore. We’re talking today about how to win a VA claim. Once– the person that’s going to be looking at this, this VSR that you were just talking about, Jon. What evidence are they going to be looking at to start off? What evidence should a veteran send in, broadly speaking and what evidence is VA responsible for going out and getting because VA is under a duty to assist veterans and so at this stage, what’s VA doing and what does a veteran need to be doing to substantiate his or her claim and make it go as seamlessly and as quickly as possible?

Jonathan: Okay. So good question. What they are going to need to try and establish as Michelle just took us through the elements of direct service connection. All of those elements need to be established. So what the adjudicator, the VSR, most likely is going to look at is are these elements established. Is there a diagnosis? Is there evidence of an event or injury in service and then is there a medical nexus between the two? If any of those elements are missing, it doesn’t just result in a denial. The adjudicator is then going to decide, okay, what does VA now need to do to help this veteran develop their claim because VA does have a duty to assist veterans in the development of their claims. So it’s not just on the veteran to submit everything to establish all of those elements. VA has an obligation and a part to play in that as well. So VA will most likely, if an element isn’t met, see what they can do about getting medical records. Most of these veterans are treating at VA medical facilities. They’ll get medical records, see what’s there. See what else can be established. And if it’s still lacking, they should be providing the veteran with information about what is necessary. And then there is some onus on the veterans to submit things like private medical records, things that will help establish any of the other elements of service connection for the case.

Michelle: Yeah. If I may add to that, some areas for service connection, lay evidence is enough to establish in service, event or injury. So–

Zach: So lay evidence, you mean non-expert evidence.

Michelle: Yes. So like statements.

Zach: The things that a person can talk about. An ordinary person.

Michelle: Yeah. You know, no one’s better to attest to the symptoms or event you experience than you yourself. So I do encourage people to submit statements from friends, family members or fellow service members to help substantiate and support their claim.

Zach: Can we talk real briefly– and this is another time to plug our YouTube channel and subscribing into that. Please subscribe to CCK’s YouTube channel and check out some of our past Facebook Lives and some other things that we’ve done. We’ve talked about what a compensation and pension, or shorthand C&P exam is more at length in a previous discussion. But quickly because it’s an important part of this particular topic which is how to win a VA claim, can you describe what a C&P exam is and what should veterans expect if VA does order an examination for them because in order for them to comply with their duty to assist, oftentimes VA is going to order a veteran to go to an examination conducted by a VA expert. So can you talk a little bit about that?

Michelle: Sure. So a C&P exam is short for compensation pension examination. They are examination VA schedules in order to determine the severity of the condition. Also to determine the relationship to service. So they’re going to have a medical expert either from a VA medical center or a private facility depending on the Regional Office and also depending on the matter that they need to opine on. When a veteran goes to an examination, you should expect to be examined from the minute that you walk into that examination room but also into the office. We often see exams where veterans– how they walked and how they came is noted in there. You should expect to talk about your condition. The severity of it. Don’t hold back when talking about it because this is what VA relies on heavily as evidence. And you should also, if it’s a service connection claim, you’re also going to talk a lot about the event or injury in service or the stressor.

Jonathan: So you can hear a little bit of the sort of advocate bias when Michelle is talking about the–the compensation–

Zach: Never.

Jonathan: — and pension exams. So a little bit of a warning there that the exam doesn’t always just take place in the examination room. We have seen C&P exam reports where it’s noted that the veteran was observed walking into the facility using the cane or assistive device, for example, in a different way than using it in the examination room. So I guess in terms of expecting and maybe this is a little bit of over paranoia, but you should go in and be absolutely truthful and forthright with the severity of your symptoms. Yeah, as Michelle said, do not hold back. Don’t take that as an opportunity to kind of show how tough you are. When being evaluated whether it’s psychiatrically or from an orthopedic perspective or whatever, make sure that they get a clear and accurate picture of what you’re going through and how severe it is.

Zach: Before we move on, I’d like to encourage people if there are any questions, please type them in the comments section. As we move along, we just talked about compensation and pension examinations. We’ve talked about where to file claims. We’ve talked about some of the things that this initial adjudicator is going to look at in deciding whether or not the veteran is service connected for a disability and then how much he or she should be rated. But along those lines, what are some common pitfalls when you file a disability claim, for example, are veterans commonly not submitting enough evidence? Are veterans not doing it on the right form? What are some reasons that the VA is going to give for denying a person service connection and then the compensation that we’ve been talking about?

Michelle: Sure. So I can touch on this. One of things that with the form that people should be mindful of is there are three different actual versions of the 526, which is the application. So we called one the long form because it’s very long and that’s a full application.

Zach: Good thing to do.

Michelle: Yeah, it’s a good thing to do. And then we have the 526EZ which is actually considered a Fully Developed Claim submission. So if you submit that, VA considers your claim be fully developed. So they do not consider it necessary to do additional development. So just be mindful what form you are submitting it on. When in doubt, use the one that’s a longer one. It’s the 526. It’s just labeled as such. A common pitfall that we see a lot is that sometimes it doesn’t get– so this comes into kind of the mailing system a little bit. Sometimes it doesn’t get uploaded correctly or properly or established as pending. So the best thing a veteran can do is follow up with VA to ensure it’s in there and ensure that it’s pending within their systems so that it is getting adjudicated. Also, if you have any evidence to support your claim, submit it with your claim. Don’t wait for VA to go out and get it because the best thing you can do is submit whatever you have and highlight what you have when you’re submitting your claim to them. Hopefully, it will cut down the time it takes for it to make a decision as well.

Jonathan: I think Michelle’s point about things not being properly uploaded into the system is not just that they’re uploaded but that they’re uploaded and recognized for what they are. So VA, when a claim is submitted operates on this system of end product completion. So they have different codes that represent certain actions that need to take place on VA’s part. And just because a claim is submitted, it doesn’t necessarily mean that VA is going to accurately see it for what it is and create so called this end product that they will then need to follow up on. So it’s necessary for representatives to get access to VA’s corporate systems such as VBMS and be able to actually look and see what end products are pending. And if they don’t show that what they think is pending is actually shown in a program like VBMS, then there’s probably an issue. And sometimes it’s the result of fault on the representative or the veteran themselves. But sometimes it’s because VA didn’t properly recognize something. So if it’s not there and there’s no prompt for VA to follow up on something, it’s just going to be sort of lost in space forever. So making sure that you’re diligent about checking with VA to make sure that what they show as pending claims are actually what they see as pending claims as necessary.

Zach: So now we’ve spoken about service connection and we’ve talked about how to get some evidence and the kind of evidence that VA is going to look at. So can we talk a little bit now and move on to how to rate it. What can veterans do– and this is still in the same vein of evidence– how can veterans ensure the highest possible rating when submitting a claim so that they won’t have to go through the entire appeals process which we can all know, which I think is very common knowledge that once a veteran is in an appeal situation, it can take many years to resolve the case. So hoping to avoid that. What kind of– what stuff, for lack of a better word, can veterans make sure that they’re submitting or what statements should they get to ensure they get the highest possible rating when they submit the claim?

Jonathan: Be aware of the evidence in your file would be an important one because when we’re talking about the severity of the condition, we’re obviously assuming that the condition is already service-connected. So we’re talking about how high should this veteran be rated. If the veteran is aware of what’s in the file, they can better know what is necessary to get the rating they deserve. So for example, we talked about C&P exams. If the C&P exam report comes out and they look at it and they don’t feel it accurately reflects the level of severity, then guess what, they got to go out and get something that does accurately reflect the severity and whether that’s an independent medical opinion from some outsider that they have to find and present and provide evidence to to make an additional report or whether it’s they go to their own treating doctor. Hey, can you write a description of my condition that accurately gives a picture of what that veteran is going through? So know what’s in your file because that’s what VA is going to see. And if you know what’s in your file, then you know maybe what is needed in your file to get you where you need to go. I think it’s also necessary to make sure you’re asking VA for what you want. So if you feel that your disability prevents you from being able to work, claim TDIU. Say you want the highest possible rating to include a total disability based on individual unemployability. Make sure that is spelled out because otherwise VA, they’re not mind readers. So if you’re just claiming an increased rating, they’re just going to look at your case and do the best they can with it. Tell them what you want. Tell them what you think you deserve and give them the evidence they need to make that decision and give you the grant.

Zach: So with that, this is a good question that we’re getting from Rich. Should you wait to submit a claim until you have all your documents? If you have to wait for a month or so to get a letter from a doctor, is it okay to submit the claim and then add the letter when I get it? That is a very good question and something that very commonly happens when you’re filing a claim so.

Jonathan: That’s a great question with a pretty easy answer. And I’ll let Michelle answer.

Michelle: So VA has this form called an Intent to File. It preserves your effective date. So even if you don’t have the evidence together, file the Intent to File. You have a year to submit your form and still get the effective date of the Intent to File. And it gives you time to gather and submit all your evidence with your claim. From my understanding, you can really just submit anything as well. You don’t necessarily need to have it on the form. It’s better to do the form. But as long as you submit your intention to file a claim, it’s follow up with the form within a year. You’ll get the same effective date as you submitted the intention to file.

Jonathan: Bottom line, don’t wait.

Zach: Don’t wait. That’s very important. Do not wait.

Jonathan: Do not wait. Get the form in, you want to preserve that effective date. Chances are, a long time has already passed from when you had that disease or disability and you don’t want to lose any more time. Get the claim in because usually the date of claim is going to control the effective date of the grant.

Zach: Right. So we really didn’t hit that part and this is Zach Stolz from Chisholm Chisholm & Kilpatrick with Jon Greene and Michelle DeTore. We’re talking about how to win your VA claim and to keep going with the answer to that very good question, effective date is something we didn’t really hit on yet but it is very important. VA will most often award benefits stemming from the date that the claim was filed. So waiting to file a claim until you have all of your evidence and until it is perfect is not something we would advise to do. If you have enough to get going, get started on it you can always submit evidence later. So I’m really happy for that question and grateful for the person who submitted it because it’s a good thing for everybody to know. And also a good opportunity to plug our YouTube channel. Speaking of things to know, that way you can get information from Chisholm Chisholm & Kilpatrick about this topic which is how to win your VA claim as well as several other topics and ongoing changes at the Department of Veterans Affairs and tips for how to be effective in this area.

Jonathan: Zach, if I could just interrupt because going back to the– there was a question about pitfalls. I don’t know if I consider it necessarily a pitfall. But one of the things you definitely have to pay attention to is that effective date because I think a lot of people are inclined to get a grant and be happy with the rating and they just move on. However, the effective date, that is something that is often wrong and there’s more of a dispute in there than you would think. It’s not as easy as it sounds as just going back to the date of the claim. So it’s important to get somebody who really understands the claims process to do an analysis of whether you’re getting the right effective date because there could be a lot at stake. Every month compensation is paid out. So every month that goes by or every month that you were sort of denied the right effective date is money that you’re entitled to that you’re not receiving.

Zach: And we have another question. Another very good question which is the second part of the already asked question, which is can you give me the terminology that a doctor needs to add to their letter showing the nexus? So that’s a very good question and there are some specific words that VA looks for. So Michelle, want to hop on that one?

Michelle: Sure. I’ll hop on this one. So it does kind of depend on what you’re looking for here. So if it is service connection, we use the terminology that the doctor needs to say that is, it is at least as likely as not related to your military service. So more than 50%, it’s a general standard that we use, we– when it comes to– if you want to get them– I guess it’s kind of the standard in general, but for unemployability benefits so saying that you’re unemployable because of your condition. It’s usually the terminology is you’re unable to maintain or obtain, or maintain or secure and follow substantially gainful employment. That’s usually the criteria that we’re looking for in the magic language per se in both medical opinions.

Zach: And the place– the follow on question was where can you find this terminology? Almost all of VA law is based in the Title 38 of the Code of the Federal Register, which are the regulations that guide VA. They are readily available online. They are public documents. There are the laws of the United States. So they’re relatively simple to find. And they’re even easier to find if you go to CCK-law.com because there’s a link on our website that takes you to find words that are important to VA like at least as likely as not as unable to obtain or follow a substantial gainful occupation. All of these are based on law and all of them can be found easily by the links on CCK’s website. So how can veterans ensure the highest possible rating when they submit a claim? And then what are the disability– and I think that the way to answer this, is what are the disability ratings based on? We had talked about that there are the 10% ratings, the 100% ratings and non-compensable ratings. And I was just talking about how 38 Code of Federal Regulations, CFR 38 CFR in Title 38 of the United States Code have all of these things. How does VA do it? Do they take the veteran and then they match it to the 10%? How does that kind of work in practice to kind of help people really understand what kind of information VA is going to be looking at?

Jonathan: I mean it’s– generally speaking, they’re trying to compensate veterans for the average impairment in earning capacity. So it does kind of break down to how much does this affect their ability to work. However, what happens if a veteran becomes service connected for a certain disability, they will look in the CFR and try to match it to as close as they can to a disability that is then tied to a diagnostic code. So VA has different diagnostic codes for certain disabilities and diseases. And those diagnostic codes have a scale and they don’t have– it’s generally speaking, in increments of 10% but not every disability goes 10, 20, 30, 40, 50 and so on all the way to 100. Sometimes there’s jumps from 0 to 10 to 30 to 50 to 70. So it’s not just in– the increments are not always in tens but that diagnostic code will lay out what level of severity is required to get that veteran say 30%– a disability rating of 30%. And then whether or not, okay, this is actually closer to the severity required to get that veteran a 50% disability rating. So the diagnostic codes are kind of where the guidance comes from. However, there is something called an extra-schedular rating where the diagnostic code doesn’t provide the guidance necessary because the condition is actually more severe than would be reflected, if you just went by the diagnostic code and then they are really just looking at what is the impairment in earning capacity and then what then they would receive what’s called an extra-schedular evaluation. But for the most part, they’re going to try to correspond it to a disease or disability that’s found in the Code of Federal Regulations and match it to that diagnostic code.

Zach: So what if a veteran is denied? What if service connection is denied or the rating that the veteran seeks is not the rating that they assign at VA? What are the options?

Jonathan: Well, I think what they want to do is probably find a representative to look at their case and see if they want to appeal. The veterans can do that themselves. They can find a service organization or a lawyer or accredited representative to do that analysis and appeal for them. But absolutely they have appellate rights in this process. And if they do get denied, if we’re talking about getting an initial denial and what’s called a rating decision–

Zach: And it doesn’t have to be a total denial. It can also be a rating lower than the veteran thought that he or she deserves.

Jonathan: Right. So we would call a partial grant. So what they can do is they can file a Notice of Disagreement with that rating decision and they have a year from the date of that Notice of Disagreement to file. I’m sorry. They have a year from the date of that rating decision to file their appeal, their Notice of Disagreement.

Zach: And then after the Notice of Disagreement is filed, it moves on in the process. You can choose to stay at the Regional Office. As of right now– and CCK’s website has a lot of information about how the system is changing. And it is something certainly to look at. But as of right now, you file a Notice of Disagreement and you get to choose whether to stay at the VA Regional Office or you can move on to the Board of Veterans’ Appeals which is where an attorney, a veterans law judge will take a look at your case and then you can also move on to the Court of Appeals for Veterans Claims. But because today, we’re talking about how to win your claim that is a whole separate subject about the long appellate process with VA and every one of those steps has a different evidentiary standard and a different time period for submitting medical evidence and different times to have hearings and things like that which is probably the subject of many more talks. And there is a lot of information to be gleaned from CCK-law.com. But any final advice to veterans on making sure that they put themselves into the position, even if they do have to go through the appeals process and oftentimes veterans do what puts them into the best position to succeed. What are kind of the succinct takeaways from today’s talk that you can think of?

Jonathan: If a veteran is representing themselves, they need to be reading everything. So you’re going to get documents that come in, decisional documents that are 30, 40, 50 pages long and it contains just a lot of sort of legalese-y gobbledygook that you need to be able to go through and pull out the necessary information you need to know to determine what action it is yours to take – is necessary to take because if you miss an appeal deadline or if you don’t submit something on the right form, it could be detrimental to your case. It could be detrimental to the point where a decision becomes final and you’ve lost your appellate rights. It could be– it could result in significant delay. And when we’re talking about delay in the VA claims process, we’re talking about not a few days or few weeks or even a few months, we’re usually talking years. So make sure that you are on top of these documents and that you’re reading them all. If you don’t feel comfortable and that you feel that you can adequately understand what is being asked of you, then find somebody who can.

Michelle: I think mine would be, don’t wait for VA to get the evidence to support your claim. Go out and get it yourself. You’d be your best– be your own best advocate. Get the medical opinions. Get the medical records. Get anything you can to help substantiate your case and submit it to VA. That’s the best thing you can do.

Zach: Okay. Thank you both very much. This was Jon Greene and Michelle DeTore from Chisholm Chisholm & Kilpatrick. I am Zach Stolz. And thank you very much for joining us today.

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