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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.

  1. VA Compensation vs. Other VA benefits
  2. The Elements of Service Connection
  3. VA’s Standard of Proof (“at least as likely as not”)
  4. How to file a VA Claim for service connection (VA Form 21-526ez)
  5. How to make sure VA received your claim
  6. Service records, Medical records, and VA Duty to Assist
  7. Compensation and Pension Examination (C&P Exam) Tips
  8. Evidence the veteran is responsible for submitting
  9. Viewer Question: How does VA’s Duty to Assist change in the new VA appeals system (Appeals Modernization, AMA, or Appeals Reform)?
  10. Certain types of claims that require certain types of evidence
  11. Common pitfalls with VA Disability Claims
  12. Viewer Question: How helpful is a nexus letter?
  13. VA Disability Ratings
  14. How to appeal a VA claim decision (Legacy Appeals system AND Appeals Reform system)
  15. Viewer Question: How do herbicide exposures claims work when your disability is not on the Agent Orange presumptive list but you have a nexus opinion?

Video Transcription.

Christian McTarnaghan: Good afternoon. Welcome to another edition of Facebook Live coming from Chisholm Chisholm & Kilpatrick. My name is Christian McTarnaghan, I’m an attorney that practices on the Court practice here and with me today to talk about how to win your VA claim is Jordyn Coad and Lindy Nash, who are also both attorneys at the firm. This is kind of a broad stroke, 10,000-foot view kind of conversation that we’re going to be having here today. Let’s start super basic with you, Jordyn. What is VA compensation and how does it differ from other things that the VA does?

Jordyn Coad: Sure, VA compensation is basically a monthly benefit, a monthly check for disabilities or injuries that are incurred and are related to service. So, it’s different from the other VA benefits like healthcare or occasional rehab for example which provide service as opposed to monthly compensation check for the impairment in earning capacity that might come up from a veteran’s disability.

Christian: One of the first steps in getting that compensation that you’re talking about is getting service connected for that disability. Lindy, what does it mean to be service connected?

Lindy Nash: Sure. Service connection is just something that you need to prove basically and be granted service connection, and service connection just means that your disease or disability or injury is causally related to service. It had to be something from your time in service that occurred in order to be compensated for that injury.

Christian: There are a few elements or a few things that a veteran needs to prove in order to the VA to grant you service connection or to find that you’re entitled to service connection. You just talk a little bit about in-service injury which is something that happened to you in service. It doesn’t need to be something that happened to you during wartime. It doesn’t need to be something that happened to you when you’re fighting. It can be anything that happened to you during your time in service. There are two other elements though. Why don’t you talk about elements two and three, Jordyn?

Jordyn: Sure. You need a current disability which means right now as you are filing the claim, you have a disability or an injury that’s causing you some impairment in your life and then you’ll also need a medical nexus between that current disability and whatever it was that occurred in service. A doctor or someone that’s medically qualified to connect the two.

Christian: We have an in-service incident, we have a current disability, and then connecting those two, we’re going to have a favorable nexus opinion or a medical expert or a qualified expert saying that yes, what happened to you in service is what’s causing this current disability. I think that a lot of our veteran viewers and a lot of veterans, in general, are interested in sort of what’s standard, right? Because a nexus is really, really, important as are, of course, all the other elements but practicing at court, a lot of times my clients are involved in cases where the nexus isn’t there. Either VA examiner or the appropriate medical personnel says, “No, Mr. and Mrs. Veteran. That disability or what happened to you in service didn’t cause this disability.” What standard should these examiners be using?

Lindy: Yeah. The important terminology, if you will, is the more likely than not standard. It’s kind of 50% more likely that that injury or disability or disorder is due to that event in service. I think it’s also important to know that although we’re talking about these three elements that is kind of what we call direct service connection and there are different ways to get service connected but I’d say direct is probably the most popular, I mean, what everyone would think of and kind of go to first. This is only one way. There are some other more nuanced ways of service connection.

Christian: Sure. Absolutely. That’s a fantastic point. Now that we sort of have an understanding of the three elements you need for service connection, let’s take a step back. Lindy, do you want to talk about filing a claim for service connection at the VA?

Lindy: Yup. Definitely. Obviously to even get to service connection, you have to file that first claim with the VA and so to do that, you would file what’s known as the 526EZ form and actually, the 526EZ is the only form that’s accepted right now. We used to have an option – it was the 526 long form and then the 526B, and the 526EZ. There were a couple of different ways. But now that we’re in Appeals Reform, I’ll talk about that a little bit later but appeals reform officially started on February 19, 2019. Now that we’re in Appeals Reform the 526EZ is the only option for a formal claim. So, once you fill that out, you can bring it in person to your local VA office, your local VA regional office. You can also mail it snail mail or fax it to what is known as the EIC, the Evidence Intake Center. That is in Janesville, Wisconsin I believe and the VA, just about a couple of years ago, they basically want everyone to send everything there so they will upload it all to their corporate online system. So that is how you would file that kind of claim either in person at the VA, your local office where you can send it to the EIC, the Evidence Intake Center via mail or fax.

Christian: So, a quick follow up question to that, I know I’m a pretty fastidious person. These claims are important. What do I do as a veteran once I file a claim to make sure that everything is going smoothly and that the EIC or whoever actually receives that document?

Lindy: Yeah, that’s a great point. So, something that everyone should keep in mind is that there are ways to follow up with the VA to make sure that they received your claim and that it is uploaded into the system and that also goes for appeals and evidence and whatever else you’re sending to the VA. And so, we have access to what is called VBMS which is their corporate online system. So you can feel free to call VA and their regional office and just say, “Hey, I dropped this claim off with you last week or I sent this into the EIC a couple of weeks ago, I just want to make sure that it’s uploaded and pending.” The VA uses this end-product system and so they’ll all set– assign an EP or end product to every pending claim or appeal just to make sure they don’t lose track of it. So, that is one way and then an important thing to do to make sure that the VA is on it and they have everything, it’s pending, and good to go.

Christian: Great. So, Jordyn, now we have a claim, we followed up, we know that VA has it, what happens next? What are they going to do with that claim?

Jordyn: So, the first thing that they’re going to do is most likely look to develop the claims. So, a veterans service representative is going to look at the claim and sort of see what elements may be are already met just by whatever the veteran has already sent in or what might be missing and maybe like do some eviden — what’s called evidentiary development, so that can include gathering VA treatment records, service records, maybe getting a C&P examination for the veteran to determine that’s warranted.

Christian: All right. So, you talked about service records, right? You talked about Compensation and Pension Examinations. Just generally to either of you, whose responsibility is it to get the service records, for instance? Does the veteran need to hold on to their service records, should they have, do they need to do anything like that because I know I have a lot of clients that will call me and say, “I have them, my service records.” Luckily, most of them are in there, when I do it but what about the veteran that’s just starting out with their claim?

Lindy: Yeah. So, it is beneficial if you have those things ready at your fingertips if you like to submit that with your claims. That’s always super helpful and if you have, obviously, private medical records, you want to submit those, that is great as well; however, the VA does have a duty to assist so that means, they have a duty to assist the veteran in developing their claim. So, if you– I guess, technically, you don’t really have to submit anything with your claim although I think it otherwise but you can let VA kind of take the wheel and get whatever service records you’re missing or opinion you may need; however, I would always suggest submitting anything that you think supports your claim.

Christian: And you have mentioned compensation and pension examination. I know that we’ve done Facebook lives on this before but just in a nutshell, what is the C&P examination?

Jordyn: So, it’s basically an exam that medical professional at the VA performs of the veteran and it covers both the severity of the condition but in the service connection context, should cover what the current disability is and what is their relation to service and, I know we’ve done other videos on it but generally, the examiner kind of watches the veteran the moment they walk in to the office and they record into the report both their observations and things that the veteran is saying during the exam.

Christian: Sure. And this is definitely talked about more broadly in our post about it and in our Facebook live about it but be honest with your C&P examiners, explain to them, don’t be stoic that they don’t show how strong you are. The purpose of that examination is to sort of see, in the service connection context, whether you’re disabilities are related to service or if you get into an increased rating, how is your disability is at that time. So service treatment records, it seems like the VA would be responsible for getting. The C&P exams are something that, under the law that when certain elements are met, VA is required to get. So, what type of evidence are the veterans responsible for. I heard you mentioned private treatment records, private examiner’s statements and things like that. When do you– would that be something that the veteran should submit or required to submit?

Lindy: Yeah. They’re definitely not required to submit anything but it is in their best interest to do so. I would say so if you’re seeking service connection for a back disability and you’re treating physician is willing to write you an opinion saying, yes, this back disability is due to your time in service, more likely than not, due to your time in service and that is great, and I very much suggest that you submit that. On the same lines, if you have any lay statement that you would like to submit yourself, discussing the severity of your condition or a buddy statement from someone you were in service with or maybe a family member who can talk about how you were when you returned home from service or what you experience on a daily basis. Those like statements are super helpful as well.

Christian: And that’s a good description of what kinds of evidence you can use. You can write a statement yourself, you can get a statement from a friend, fellow service member, things like that in addition to these other types of evidence. So, we have a question from Michael and I’m going to direct this question to you, Lindy. What changed with the duty to assist with this new appeals reform? Thank you for the question, Michael.

Lindy: Yes. So, I would say the biggest change is that, and I was going to talk about this a little bit later but I can talk about it now. In appeals reform, you now have a different way of appealing a decision that you don’t like. So, now there are three different lanes. You can do a supplemental claim lane, the higher-level review, or the Board lane. And then there are also more choices off of the Board lane. But for this question, the duty to assist now only applies in the supplemental claim lane. The supplemental claim means that you are submitting new and relevant evidence. So, if you choose a higher-level review, you cannot submit any new evidence. The records is closed to what are already been submitted. And the Board lane, there are some other options there as well but in that supplemental claim lane, you can submit new and relevant evidence but the duty to assist only applies in that supplemental claim lane. I hope that answers the question.

Christian: So, before we move on away from the evidence portion of this conversation, I think that a lot of veterans would be interested in knowing, are there certain types of claims that require certain types of evidence or can you basically treat all of your claims differently? And like we have alluded to, VA should be letting you know what you need to be doing to make your claim successful but can you think of any examples either of you of something that might be a little different than just run of the mill for a lack of better way to describe it?

Jordyn: Sure. So, a claim for PTSD for example might require more evidence to verify the stressors that caused the PTSD. In certain circumstances, that might be the case. The same could also be true for a claim based on herbicide exposure. There might need to be additional or different evidence that establishes where the veteran served in order to establish whether he or she was exposed.

Christian: I think there’s two great examples and also just a reminder, make sure you’re reading what VA is sending you. Sometimes they are incredibly long document. Sometimes they are incredibly complicated documents but in most of them, and there should be all of them, they explain to you what you need outside of all of what we call boiler plate, just listing all the law, and numbers and everything like that. So, make sure you’re reading all of that to understand what you need to give VA for them to find in your favor. So, the process starts with filing the claim, getting all your evidence and along the way, what pitfalls do you think people should be wary of, Jordyn, when they’re going into filing a claim?

Jordyn: So, I think, we kind of alluded to it but definitely being aware of the status of the claim, reading everything that VA sends to you, it can be– it might seem like a document that’s maybe not that important but read it thoroughly if you don’t understand it. You ask someone for help to sort of figure out what it is that they are saying because you don’t want to miss an opportunity to either appeal something or a lot of times, I’ve seen in our court practice, a veteran might miss a C&P examination. Either they missed it, couldn’t make it that day for some reason or weren’t available and if they don’t say anything, that can be detrimental to the claim. So it’s okay if you can’t make it to VA’s scheduled exam, just let them know and try to get it rescheduled and make sure that that’s in record. That’s something I’ve noticed.

Christian: Okay. Any pitfalls that you can think of Lindy?

Lindy: I was going to say that I wouldn’t wait to file something so sometimes you have– you want to file a claim for your knees, service connection for your knees but you don’t really have everything you need just yet and so you’re thinking, “Oh I shouldn’t file the claim until I have everything that I need. Well, VA has what’s known as an intent to file so you can submit your intent to file to reserve your effective date. Although under appeals reform, I’m not sure if that’s fully accepted anymore but we’re still doing it so I would suggest doing it to preserve your effective date. So, you don’t have to submit everything at the same time although I do suggest getting everything together so that’s in a nice package for VA in that they don’t have to go looking for anything and they can just look everything you’ve submitted and hopefully grant your claim.

Christian: So, before we keep going with pitfalls because I think there’s a few more things that we want to address there. I wanted to ask this question for Jennifer. Thanks for the question, Jennifer. How helpful is a nexus letter? So, we sort of had alluded to before or maybe even more than alluded to, discussed how nexus is an element of service connection. Lindy, you practiced in our agency practice, how helpful would a nexus letter be for a veteran who’s trying to get service connected?

Lindy: Very helpful. That is great and if you are treating with a private physician, if they can write you a nexus opinion letter, that is awesome. A lot of the clients that I worked with, we are missing that nexus component and for some reason, maybe they don’t treat regularly or something along those lines and so we would often go and try to get our own opinion and that can take time and it can be costly so if you have your own or if your private physician is willing to give you one, that is awesome and also, we were talking about this before but VA relies so heavily on their own C&P exams. They will frequently give our opinions or the veterans opinion no probative value but give their exam a ton of value. So, if you can kind of bypass that and give your own opinion, that’s favorable and I think that’s awesome.

Christian: So, we’ve been talking a little bit about ratings and I want to take a step back here and just explain for– I think that many people would know but what is a rating?

Jordyn: So the rating is the percentage assignment that’s assigned to your disability after you’re service connected and that correlates to the amount of money that is then released to you every month for compensation and it’s based primarily off from the impairment and earning capacity that your disability causes but each disability or injury or disease has different ratings or different criteria in the rating schedule that kind of correlate to that.  And so, a knee disability is rated differently from PTSD obviously or even a back disability and the ratings kind of go through what a veteran needs to have sort of what the disability picture should look like.

Christian: And obviously, a veteran would want the highest rating possible so sort of leading back into our pitfalls discussion, one of the best things that you can do is to advocate for yourself, I think. Tell the VA what your symptoms are. Tell the VA how it affects your life. Ask VA for a particular rating. Don’t unnecessarily limit yourself because you might not know what rating you’re entitled to but be honest, be truthful, and if VA isn’t getting the message, just continue to let them know and continue to follow up to make sure that they’re processing the claim, they’re working on the claim and that they received your statement about how it affects your life because like Jordyn said, the ratings are a proxy for occupational impairment but a lot of the rating criteria for post-traumatic stress disorder for instance really take how it affects your day to day life in consideration a great deal.

Jordyn: Yup. Definitely.

Christian: So, what if– so you were granted service connection then you get a decision that gives you a 10% rating. Where, let’s say a 30% rating for post-traumatic stress disorder, you don’t like the decision, what can you do about it Jordyn?

Jordyn: So, you can appeal it and the ways to appeal it have sort of changed now and we kind of talked about that a little earlier with AMA and Appeals modernization. So, you can disagree with it and appeal it and then VA is supposed to take another look at it and depending on which lane you choose, you can possibly submit new evidence or have someone else take a look at it.

Christian: So, in the legacy system, there was a disagree with the NOD, right? That’s what we’re talking about. Lindy, do you want to pick up on maybe just a little bit more specificity in the appeals, lanes, and appeals modernization? We do have an entire Facebook live on this but just touching on it briefly because it’s incredibly relevant. Give us the elevator pitch.

Lindy: Sure. So, basically like I said before, February 19, 2019 was the day that appeals reform began. So, it was signed in to law a couple of years ago but it didn’t start until February 19, 2019. So, if you get one of those initial rating decisions with the date after that, so say you get one today or yesterday, you are now in the new system. So, you are not under the traditional appeals system that we’re working with before. You’re now in appeals reform. So now, you have three options which I alluded to before. The first one is Higher Level Review and so that means you basically want a specialist at the RO who has a little bit more experience than the person who looked at it originally to review your decision, to know also to take a first look at it. Again, you cannot submit any new evidence. It’s based on what is already in the record. Also, that’s Higher-Level Review, you can do a supplemental claim lane which I also mentioned before and that is the lane where you can submit new and relevant evidence. So, if you, all of a sudden got that private physician opinion and you want us to submit that, great. If you want to submit a statement or medical literature or something that is not in the record already, you would opt in to that supplemental claim lane.

Your third option is the Board lane; however, there’s three options within the Board lane so follow me here. At the Board lane, the first option is the hearing lane so if you’d like to have a hearing you can opt in to that. The second one would be the direct lane. So similar to Higher Level Review except you’re at the Board. So, there’s no new evidence and they’re just looking at what’s already in the record however, you’re at the Board. And then the last one, is the evidence docket and that means you can submit new and relevant evidence again to the Board however, it’s different from supplemental claim because you’re at the Board. So, three lanes at the Board, three lanes in general. We have a lot of visuals in our other presentations so feel free to take a look at those.

Christian: So, everyone understands the appeals reform.

Lindy: Right, yeah. It’s very clear, it’s very clear.

Christian: I think we have some other information on that forth coming or so I’ve been told. We have a question from Patricia and it’s a great one. If you get approved for herbicide exposure, so the VA concedes that you’re exposed to herbicides but the illness is not a presumptive illness but you have a nexus letter. How does that work? So, I’ve been asking all of you guys a question. So I’ll take a crack at this one and please jump in with your thoughts. So getting service connected for a disability due to Agent Orange on a presumptive basis is only one way to do it. So, let’s say you were exposed with herbicides and you have a presumptive disability. That’s it. However, there’s a case law that says, that’s not the only way to do it and that’s not where the VA can stop. So what the VA would have to do is they would have to determine whether, even though you don’t have a presumptive condition, whether that condition was caused by your conceded exposure to herbicides and the nexus letter can help with that because it goes right back. This bring us full circle which is great to direct service connection what we’ve been talking about. So where we started the conversation, is sort of where we’re ending up know, right? You would have the in-service incident, you would have nexus, and then you would have the current disability. And so, that’s how sort of that would all work when it’s not a presumptive condition under the regulations or under VA law.

Lindy: Yeah.

Christian: Does that work?

Lindy: Yeah, if you have a private opinion saying that your condition, even though it’s not presumptive, it’s not on the list then that’s great. And I would submit that.

Christian: I was actually working on a case that involved that very issue right before I came in here. So, I think that at this point, we’re sort of on final thoughts. We’ve talked about it a lot today and we’re talking about things generally. If there are any more specific questions or specific issues, please take a look at our page to see if there is any more Facebook Live or other materials that might be able to help answer your questions that we didn’t get into today but any final thoughts before we wish our audience well?

Jordyn:  I guess I would just say, this is sort of another maybe pitfall that we do really get into but just being as clear as you can when you’re filing an initial claim about what happened. Let’s say to claim for service connection. What happened to you in service, what happened to you after service, and where you’re at now and sort of how that has progressed if you didn’t seek treatment for a little bit of time after service and there’s a reason for that maybe your condition was easily treated with over-the-counter medication or something like that. You can explain all of that to VA and that might end up being helpful to you down the road. So just being clear and honest as early on I think is really helpful.

Lindy: Definitely I would say like Christian said earlier, read everything as thoroughly as you can. The deadlines are real and it is really unfortunate sometimes when we’re working with our clients and we see that they originally filed a claim in 2011 and they appealed and they appealed and they stopped appealing and unfortunately, that claim stream has died for lack of better word and usually we can’t get it back to 2011. So, I would just be really cognizant of your due dates and deadlines and keep something on appeal if you believe in it and if you think you have evidence to support it. VA makes mistakes all the time and so, believe in yourself and keep appealing if you think it’s not right.

Christian: Please update your address with the VA. That’s something– I had something else that I was going to say as a final thought but it sort of underlines all of this. If they don’t know where to send it to and they send it to the wrong place and you missed an appeal deadline, and you didn’t let them know, you can run into some issues with your claim. Don’t assume that they know where you have moved. Make sure to update VA about where you are so they can send those notices to the right place and you don’t miss any deadlines.

Jordyn: Yes, definitely.

Lindy: And we touched on this, one more thing, we touched on this before but I think it’s really important. At the C&P exams, be so honest. Do not hide the ball, now is not the time to be tough and make them– make them think it’s not as big of a deal as it is. Be honest with them. Tell them what you’re experiencing. Be honest of course but just know that they really heavily rely on those exams so, be really honest with them about what you’re going through and then, yeah, I think that’s good way to go.

Christian: Well, thanks guys. Well, thank you for tuning in. This is Christian McTarnaghan, Jordan Coad, and Lindy Nash at Chisholm Chisholm & Kilpatrick. Thanks.

 

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