What Are The Most Important Va Forms and How to Use Them
Michael Lostritto: Good afternoon. This is Michael Lostritto, attorney from Chisholm Chisholm & Kilpatrick. Welcome to today’s Facebook Live. With me today, I have Michelle DeTore and also Rachel Foster, both advocates here at the firm. Today, we’re going to be talking about seven of the most important VA forms and also a little bit about how to use those forms. As always, if you have any questions during our broadcast, please feel free to ask that question in the comment section or otherwise, please feel free to reach us on our website at cck-law.com where we have additional information about this topic as well as a number of other different topics. So, let’s get started today. The first form that we want to discuss is the VA 21-526EZ. Michelle, maybe you could tell us a little bit about what this form is and also how it’s used.
Michelle DeTore: Sure. This is the Application for Compensation. It’s primarily the first form most veterans file because it’s usually the form that you’re using when you first file a claim. You can use it for new claims, claims for an increased rating, maybe service connection for secondary conditions. For conditions you’re already service-connected for. I think the thing just to keep in mind is with the new system appeals modernization, you can’t necessarily just file a 526 if you already previously filed for the case or the issue, now you actually need to file a different form which Rachel would be discussing a little bit later. But initial claims and initial increased rating claims are usually what the form is primarily used for.
Michael: And so, when filing a 526 EZ, we’re talking about this in the context of submitting a Legacy claim.
Michael: Are you allowed to submit additional evidence? Are you required to submit additional evidence? Is there a difference between what’s commonly known as the standard claims process versus the fully-developed claim process? Can you speak a little bit about that?
Michelle: Yes. There are two different types of claims you technically file. You file what they call a Fully Developed Claim (FDC) and when you file that, it’s supposed to be an expedited process. The reason that it’s expedited is it’s saying that the claim that you’re filing is fully developed. VA does not need to develop it anymore because all evidence needed to adjudicate your appeal is before VA. It doesn’t mean that VA won’t schedule an examination, it just means that you’re acknowledging that VA doesn’t have to. With the standard claims form, you’re asking VA to develop your case which may be go out and get medical records, examinations, treatment records. There’s not really a pro or con to one unless you want VA to go get treatment records or you think that you need a VA examination. I think it’s just important to be mindful of the fact that when you file a fully developed claim, VA is likely not going to do any development.
Michael: Yes. Those are good points. Now, say that you’re a veteran or a veteran’s advocate, you completed the form. What are some of the different ways that you can go about submitting this form to VA?
Michelle: Sure. For veterans, you can upload it through eBenefits which is a quick and easy way to do it. You can also mail it. You can fax it. Just keep in mind that when you’re mailing or faxing it, you’re mailing it and sending it to the Evidence Intake Center, not the VA Regional Office. You can also, if you live near a VA regional office, you can bring it down and deliver it in person.
Michael: The final thing about filing a 526EZ, are there certain rules that govern when a legal representation can charge for matters from filing a 526EZ? Are there certain rules that govern that?
Michelle: Representatives cannot charge fees on initial claims. As long as there hasn’t been a decision and a subsequent appeal of that decision, the representative should not be entitled to any fee on initial claims. Most of the time, if somebody is filing, a representative is submitting a 536EZ for you and there is no subsequent decision granting benefits, there would be no fee entitlement for that representative.
Michael: Great. Thank you. So, one of the next forms that we want to get into talking about is VA Form 21-8940 or what’s commonly called 8940. Rachel, maybe you could discuss a little bit about what this form is? What was its really intended to be used for?
Rachel: Yes, absolutely. So, 8940 is an application for increased compensation based on unemployability. It’s a form that VA relies heavily on when they are developing TDIU claims and appeals. Essentially, it is a three-page form. It asks the veteran questions regarding their occupational histories. When was the last time they worked full-time? When did they have the highest annual earnings? What were they doing at that time? What was their last 5-years of employment? Where did they work? It also asks for educational history. What’s the highest level of education that they completed as well as when they became too disabled to work as a result of their service connection disabilities. They can also list what their service-connected disabilities are that contributed to their unemployability.
Michael: Right. And so, when we are talking about individual unemployability or TDIU, just to take a step back, can you explain a little bit about what individual unemployability is?
Rachel: It is a total disability rating based on individual unemployability, as you mentioned, TDIU. So, essentially when a veteran’s total combined evaluation is less than 100%, they can still get paid at the 100% rate if their disabilities result in an inability for them to secure or follow substantially gainful occupations. So, VA has a couple of different ways that they consider TDIU so a veteran could meet schedular requirements for TDIU, meaning that they have a single disability rated as 60% or a total combined evaluation of at least 70% with one of those disabilities being a single 40%. Even if you don’t meet those schedular criteria, VA will still consider TDIU on an extra-schedular basis. We refer to it as 4.16B consideration of TDIU. That’s essentially how veterans can qualify either on a schedular or extra-schedular basis; however, the essential question is whether or not the veteran is able to secure or follow gainful occupations as a result of their disabilities.
Michael: What happens if a veteran doesn’t use this form when they’re trying to seek TDIU benefits?
Rachel: As I mentioned, VA relies heavily on this form. If they request an 8940 and the veteran doesn’t submit the 8940, they could use that as grounds to deny the claim.
Michael: A minute ago, you said that some of the common questions that were asked on 8940 were about employment history. It may be income within the last 12 years, education, or training. Why is VA asking these questions?
Rachel: When they have to determine– one of their jobs is to determine whether the veteran’s service-connected disabilities result in unemployability but they have to consider factors such as their educational background, occupational background and the limitations of their service-connected disabilities. They rely on that information on the 8940 to make those determinations.
Michael: Okay. One common thing that I see in my practice, I’m sure you do as well is, often it’s a simple problem but it can be difficult to deal with sometimes. When a veteran has a very extensive prior employment history or educational history, or treatment history, what would a veteran do or a veteran’s advocate do if they need more room if it won’t all fit on the form that’s provided?
Rachel: There is, on the last page, a box that says remarks. It’s a small section that the veteran can use to add additional information if it doesn’t fit on the form but most of the time, that is not enough information for what you need to convey to VA. You can certainly attach addendum pages or additional pages to go along with the 8940 to give the best picture of what your educational or occupational history is.
Michael: Okay, great. Thank you. Moving on, the next form that we want to talk about is one of the newer forms. It’s one of the forms, 20-0995. It’s what’s called the Supplemental Claim Form. This is a form that is used in the new appeals modernization program, the new system if you will call it that as opposed to the Legacy Appeals System. This is a form that is submitted when a veteran wishes to file what’s called a Supplemental Claim. By way of background, a Supplemental Claim can be filed when a veteran wishes to submit what’s called New and Relevant Evidence with their claim or appeal. New Evidence just means evidence that wasn’t previously before the VA adjudicator when they previously decided the claim and Relevant Evidence just means that the evidence that’s being submitted must, in some way, prove the veteran’s claim or appeal. It doesn’t have to fully– it’s not a high standard. It doesn’t have to fully prove the claim or appeal but it has to, in some way, move the ball in the direction of proving the claim or appeal. Again, this is a form that must be submitted whenever a veteran is looking to appeal to either a rating decision, maybe they’re looking to appeal a board decision under the new system or even under the new system they can appeal a court decision by submitting a supplemental claim, provided they, of course, have new and relevant evidence to do so. One thing that’s unique about filing a supplemental claim is that, in doing so, VA under this new system AMA, they will have the duty to assist. The duty to assist applies and VA will then be required to take reasonable effort essentially to help develop the veteran’s claim. This is unique in the new system as opposed to the Legacy, the old system, in the sense that in the other lanes in AMA, VA doesn’t have this same duty to assist that they might have once had. So, for veterans seeking to have VA further develop their case, they might want to consider submitting a supplemental claim. They’ll either need to submit new and relevant evidence or they can identify new evidence that they would like VA to go get. For instance, say a veteran is looking to submit a supplemental claim and they’re currently treating for a condition and the claim or the appeal that they’re submitting is for an increased rating, they can identify treatment records from the provider where they’re currently treating and have VA go get those treatment records so that they can then help further develop their case and help prove the case hopefully. One thing that’s important to know is that when filing a supplemental claim, a veteran should do so within the one-year time period from when the decision was issued if they want to preserve the earliest effective date that they can preserve for that claim. Outside of that period, a veteran would still be able to submit a supplemental claim provided, of course as we said, they have new and relevant evidence but they will lose the effective date if they don’t appeal within that one-year period. Form 0995, the Supplemental Claim Form, is a very important form especially now as we move away from the Legacy or the old system and move into the Appeals Modernization System.
The next form that we want to discuss is actually also a new form under AMA. Michelle, maybe you could talk to us a little bit about form 0996, it’s the Higher-Level Review form. Could you first tell us a little bit about what a higher-level review option is under AMA?
Michelle: Sure. Under AMA, you have a new option and it’s in response to filing an original claim and getting a decision off of that or getting a decision from a supplemental claim lane. At this point in time, you can request that your decision or your issue be reviewed by a higher-level adjudicator. Usually, you can choose whether or not it is reviewed within the same regional office or another regional office but they’ll be issuing a decision. The big thing with this lane is you cannot submit new evidence. New evidence includes talking about treatment records, medical opinions, statements. They’re only going through review based on the evidence that was of record at the time the previous adjudicator reviewed the file. That’s just something that is, if you’re going into this lane, it’s something to be very mindful of. It’s typically a faster lane to be in. I would say we’re usually getting decisions in two to three months, sometimes a little longer now that the fact that it’s the fastest lane. It has kind of been announced. A lot more people are hopping into it but it’s just something to be mindful of when you are going into the lane that there is no due process in this lane.
Michael: In terms of the duty to assist that we were speaking about in the supplemental claim lane, is there really a duty to assist in AMA in the higher-level review option?
Michelle: No. They are not going to go out and develop your case. They’re not going to get exams, treatment records, or anything. They’re only going to use the evidence of record that was previously there before the previous adjudicator.
Michael: In terms of filing a higher-level review appeal with Form 20-0996, when can a veteran file this?
Michelle: They can file it in response to an original decision. So, you file an original claim, you get a decision, you can go into one of any of the three lanes. At this point in time, you can go higher-level review and you can also do it from a supplemental claim decision. You cannot do it on higher-level review decision. If you get a higher-level review decision, you can’t again go higher-level review and you can not do it for a board or CAVC decision.
Michael: As part of the higher-level review process, one of the options veterans now have, and I believe it’s even an option they can check on the form itself, is to have an informal conference. Can you speak to us a little bit about that process and if a veteran chooses to select that, how they would go about doing that?
Michelle: There are certain areas in the form that asks if you would like to have an informal DRO conference. So, you’re going to be talking to the adjudicator essentially reviewing your case. You can schedule a time they kind of check off certain blocks of time that might be more advantage for you at that time. They’ll give you a call to discuss your case. They’re not going to really argue back and forth with you about it. It just gives you a chance to be heard on the case. It does create a little bit of a delay. In our experience, if you do request one and typically the process is very informal. They’re gong to give you a call over the phone. Make sure when you do file the form, you give the phone number you want them to contact you on. They’re going to give you a call and go through your case a little bit over the issue. One thing to be mindful is if you’re not prepared or if you want a day or something just to be able to have everything in front of you, just talk through with the adjudicator. You can ask and you can see if they’d be willing to do it on another day. We were actually just talking about whether the process is different in the new system versus the Legacy System and it’s pretty much the same, the only thing I think you’re really going to see now is they’re not going to be, again, you can’t say– you can’t identify or submit new evidence. You can’t say, “Well, if you go get my treatment records they show this.” You are only, again, in the new system just talking about the evidence of record at that time.
Michael: Yes. This conference is really intended, I think, to replace the former DRO conference in the Legacy system. And so, I personally conducted a few of these and they seem to work similarly to how the DRO conferences have worked historically in Legacy. Now, with filing a higher-level review appeal, are there certain deadlines that a veteran should be aware of here?
Michelle: Yes. You only have a year to file. It’s the year from the date you were notified of either your supplemental claim decision or your initial claim decision.
Michael: Okay. All right. Moving on, the next form that we would like to discuss here, Rachel, is the 10182 and this is what’s called the Decision Review Request. This form is used when veterans are looking to appeal their case to the Board of Veterans Appeals. In the Legacy System, and Rachel, maybe you can speak to this a little bit. In the Legacy System, veterans would file a Notice of Disagreement. This form is sometimes called a Notice of Disagreement but it’s vastly different and maybe you can speak to that a little bit and how it’s different in AMA verses, how it was previously filed in Legacy.
Rachel: Of course. One of the major differences is where you file it. In the Legacy System, the Notice of Disagreement was filed with your agency of original jurisdiction or Regional office. In AMA, that changes. A Notice of Disagreement now goes directly to the Board of Veterans Appeals. With the new AMA system, you now have the option to choose one of the three lanes to have the Board review your case.
Michael: Could you describe a little bit for us what those three lanes are and then get into some of the differences between the lanes?
Rachel: Yes, of course. One of the three options is the Direct Docket Lane. The three options altogether are Direct Docket, Evidence Docket, and Hearing Docket. If you choose the Direct Docket, that essentially means that you are not submitting any new evidence to the Board. It tends to be the fastest decision because you are not submitting any new evidence and you’re not requesting a hearing. Basically, you are asking the veteran’s law judge to make a decision based on the evidence already on record. In the Evidence Submission Docket, you have the opportunity to submit additional evidence but you can only do that either with the submission of the Notice of Disagreement or within 90 days of submitting that Notice of Disagreement. And then the last option is the Hearing Docket. This one does tend to take the longest just because the wait time for hearings is so long but you do have an opportunity to appear before a veteran’s law judge at a hearing. You also have an opportunity to submit evidence either at the hearing itself or 90 days following the hearing.
Michael: If veterans are looking to file this form and appeal their case to the Board, can they appeal to the Board after any decision? Are there certain decisions where they can’t appeal to the Board from, or if a veteran is looking to appeal to the Board. I guess my questions is, what types of decisions can they appeal from?
Rachel: The Board lane is open for review of any decision made by the Regional Office. A supplemental claim decision, higher-level review decision, or an initial rating decision.
Michael: That’s different, right? Because as we talked about just a second ago, veterans who are looking to appeal and file a higher-level review form, they are not allowed to do so if a prior decision that they’re appealing was a higher-level review appeal or decision rather, or if it was a Board decision that they received. We actually have one question. The question is, how would informal conferences work when a veteran has a rep and wants the representative to be on the informal conference call? That’s a good question. Do either of you want to take that? If not, I can do that.
Michelle: Sure. I can handle it. So, typically, they actually will contact your representative first. That’s typically the number that is provided on the form and because you are represented, they have to contact them because they can’t just contact you directly on the matter. Typically for us, when we represent a client, and we’ve asked for when they contact us and they try to talk to us and set up a time if possible for us to go forward with the conference.
Michael: Yes. The VA really shouldn’t be reaching out to the veteran to hold the conference when the veteran is represented and the veteran’s representative has no knowledge that the conference is going to be held, and the veteran’s representative has no ability to really participate in the conference. So, I personally haven’t seen that happen in my practice but I think it’s definitely something to be on the look out for. And then following up, Rachel, just one last issue here. One last question regarding appeals to the Board, are there certain deadlines that veterans must be aware of for filing that form?
Rachel: Yes. In order to preserve the effective date of your claims, you will need to file the Notice of Disagreement within one year of that decision to the Board.
Michael: Okay. All right, great. Moving on, the next form that we want to speak about here is a little bit different in the sense that it is not an appeal form but nevertheless, it is an important form for veterans to be aware of. It’s form 21-4138, and this is a Statement in Support of Claim. This form really allows veterans to provide lay testimony or some people would call it an affidavit, whatever it may be. It is an opportunity for veterans to provide lay testimony and report on either the severity of their symptoms, for instance, or maybe they are seeking service connection for PTSD and they’d like to detail their stressor. It is an opportunity for veterans to lay out any information they’d like to relay to VA for them to consider in adjudicating their case. Something interesting about this statement is that it’s not just for veterans necessarily to fill out and submit, they can also have somebody submit it and give a statement on their behalf. So that might be a spouse, for instance, or a service buddy, something that’s called a buddy statement in the VA land. This form can be used for several different purposes and in different ways but really, it’s just to relay to VA lay testimony that they would like VA to consider in adjudicating their case. One example just to relate this to something we’ve seen in our practice, one example of this is if a veteran is seeking an increased rating for their headaches condition. A veteran may want to consider filling out a statement in support of claim and if this is the case, they can express the increased severity that they are now experiencing and they can lay it out for VA to consider as well as all the other evidences already in the file. Do either of you have additional information or anything else that you want to touch upon on that statement?
Michelle: I think that it’s important for veterans to know that prior to 2015, you could actually, you could submit claims and appeals on this form and it was frequently used for that.
Michael: That’s a very good point but post 2015, it’s a little different, right?
Michelle: You are now required, yes.
Michael: As this is kind of a common theme with all of these different forms that we’re speaking about today, VA now post 2015 is much more, I think it’s fair to say, right? That they are much more strict in requiring veterans to fill out forms in specific instances. That’s why it is so important that veterans be aware of these different types of forms and fill them out when necessary. Moving on to the– I’m sorry?
Rachel: Michael, the only thing I was going to add when you’re talking about that statement in support of claims is that there is a specific form for PTSD claims. That’s the VA form 21-0781. If you are filing a claim for PTSD, VA may ask you to submit this or you may want to submit it on your behalf just because it has very specific information such as unit assignments, any witnesses or anyone who saw the stressors that VA wants to corroborate. It’s just a very specific statement in support of the claim that’s tailored for PTSD claims.
Michael: Yes. That’s a great point, Rachel. Thank you. Moving on to our final form that we want to discuss here today. It’s the 21-686C and this is the Declaration Application Request to Add or Remove Dependents. Veterans can receive additional compensation above and beyond what they receive for their service-connected disabilities under certain situations when they have qualifying dependents. Typically, some of the basic requirements are that the veteran be service-connected at a combined 30% or more rating, and then have a qualifying dependent such as a child or a spouse. So, Michelle, maybe you could speak to us a little bit about different situations in which a veteran may file for dependency benefits and use the 686C form.
Michelle: Yes. Anytime you become service-connected and you are rated now at 30% or more, like Mike said, you are eligible. The thing to be mindful is VA would just tell you that you might be eligible but they won’t prompt you to really fill this out. So, be mindful of when you’re going to be eligible for your dependents. It’s typically noted in the rating decision you might be and it will tell you the form. So, you can go on and fill it out. It’s going to ask a very detailed history of your marriages, your divorces, your children’s information. When I talk about marriages and divorces, they’re going to want dates, locations, and be as accurate and as close as you can to the actual date. They actually want supporting documents, your marriage certificate, your divorce decree. It can be kind of a little cumbersome to obtain all of them just to get into VA but they do have the due process of needing the documentations. They are supposed to sympathetically read everything but in the best you can, I would get all supporting documents for children. They want birth certificates. They want their Social Security numbers. They want to know if they live with you of if not, who else they do live with and with children that are 18 to 23, you can still get dependency benefits for them because if they’re in school, they are still considered dependents. For those children, you actually need to fill out an additional form that’s called the 674 that kind of go through their school attendance because VA wants to know where they’re going, if they’re going full time, when they’re going to be graduating, and you’re going to need to be submitting transcripts to show they’re in school. Typically, if your child is under the age of 18, VA will remove them at 18, and if they’re going to be 23, they’re going to be removing them at 23.
Michael: And so, the 686C form can be used, as we’ve said, to add a dependent or also can be used to remove a dependent.
Michael: I think that’s important because if veterans fail to remove a dependent when they should, what happens?
Michelle: VA is going to create an over payment. This happens sometimes even VA will send out occasionally a 0538 Status of Dependents questionnaire. They send it out occasionally just to say, “Hey, has anything changed in your dependents? Please let us know.” If you won’t fail to send it back in they’ll reduce you and also if they find out that, let’s say, you submitted it years ago, you were divorced and you failed to let VA know, they’re now going to create an over payment for all the years they paid you for a spouse that you no longer have or haven’t had since that period. Anytime there’s any change, whether it’s divorce, the child is over the age of 18, or unfortunately, a death in the family, you do need to report to VA and you can use these standardized forms.
Michael: Yes. That really is, I think, a great and critical point that underscores why knowing about these forms and using these forms appropriately is so important because they can have some very significant consequences for veterans and veterans spouses if they are not used appropriately. So that concludes the different forms that we are speaking about today. Do either of you have any final thoughts that you would like to discuss about any of these, anything additional…?
Michelle: I think one important thing to know is that VA is no longer attaching appeal forms to the decisions. They’re actually just telling you the form numbers and what they are. I think it’s an effort to go green a little bit, kind of having a little less paper going out in the world but also because there’s multiple appeal options you can take. You actually will need to go to VA’s website and get the form yourself. They do tell you what the form number is typically on the decision but it is something to be mindful of is that you’re used to them attaching it. They’re no longer going to be doing that.
Michael: Yes. That’s a really good point and definitely a difference from how it used to be. So, good thing to know. If we don’t have additional questions, then that concludes our broadcast for today. Thank you all for joining us and Happy New year.
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