OVERVIEW OF CLAIMS FOR VETERANS' BENEFITS
Prepared by: Baku N. Patel
Lieutenant Commander
United States Navy
Judge Advocate General
Admitted to practice before the United States Court of Appeals for Veterans' Claims. Member of the National Organization of Veterans' Advocates.
The following is a brief summary regarding the claims process for veterans to claim veterans' benefits. The primary purpose for the following discussion is to give prospective claimants for veterans' benefits an idea of the types of claims that he or she may be entitled and a general overview of the process in obtaining disability benefits from the Department of Veterans' Affairs. This is not intended to be an exhaustive discussion but only a brief summary of the process itself. A much more detailed discussion of the process and procedures will be discussed at a consultation.
To begin, I will personally handle all veterans' benefits claims for our law firm. I served in the United States Navy as a Judge Advocate General and understand the needs of veterans, particularly those who are disabled. Our legal fees are contingent upon winning your case. The Department of Veterans' Affairs considers a reasonable fee as 20% of any back benefits which we receive on your behalf. We do not collect fees on any future benefits for which you may be entitled. In addition, should you not receive any back entitlement benefits upon exercising every appeal right, no legal fees are owed for our services.
The most important VA benefit program is for service-connected disability benefits ("Compensation"). Other benefits for which veterans may be entitled are non-service connected disability pension benefits for wartime veterans, service-connected death benefits for certain qualified survivors of deceased veterans and non-service connected death pension benefits for certain qualified survivors of deceased wartime veterans.
There are potentially three determinations that the VA will make in deciding a veterans' claim for disability compensation:
1. Whether the veteran is entitled to disability compensation, and, if the veteran is so entitled, then the VA determines;
2. The degree of the veterans' disability (from 0% to 100%); otherwise, known as a rating decision; and
3. The effective date of the award of disability compensation (the effective date is the date from which monthly payments are made). The effective date is usually, but not always, the date the claim is received by the VA.
Veterans are entitled to compensation for disabilities in or aggravated during active military, naval, or air service. 38 U.S.C. Section 1110. This means incurred in or aggravated during the period starting on the date of entry into active service and ending on the date of discharge from active service. Any injury incurred while a veteran was on active duty may be entitled to service-connected disability benefits.
There are three basic entitlement criteria that are necessary to establish a claim:
1. Evidence (usually medical evidence), if the veteran currently suffers from a disability;
2. Evidence of an incident, injury, or event during the period of the veterans' military service;
3. Evidence (usually medical evidence), of a link between the current disability and the incident, injury, or event during service.
Medical evidence may be derived from treatment from VA doctors at a VA hospital or by private doctors of the veterans' choosing.
All claims must be in writing and submitted to any one of 58 regional offices of the Department of Veterans' Affairs. Every state in the United States has at least one regional office. Once a claim has been submitted to a regional office, the regional office is required to render a decision.
If a veteran receives a denial from the regional office of his claim for disability benefits, and he or she desires to appeal the denial of benefits, a Notice of Disagreement is required to be submitted by the veteran to the regional office. There is no VA form or formal language that must be used for a document to qualify as a Notice of Disagreement. A Notice of Disagreement must express disagreement with a specific determination of the agency of original jurisdiction, generally a decision by a regional office, filed in writing with the regional office within one year after the date of mailing of notice of the regional office decision and it must be filed by the claimant or claimant's authorized representative. The Notice of Disagreement must express a desire for appellate review.
Upon receipt of the Notice of Disagreement, the regional office must review the claims file and either: 1) allow (i.e. grant) the claim, 2) prepare a rating decision confirming and continuing the denial; and/or 3) issue a Statement of the Case that contains a summary of the evidence, the applicable law and regulations, and the reasons for the denial of claim with respect to issues raised by the Notice of Disagreement. A veteran must not only file a Notice of Disagreement, but must also timely file a VA Form 9. The VA Form 9 must be filed either within sixty (60) days of the receipt of the Statement of the Case, or within one year of the Notice of Action by the regional office denying the claim, whichever is later.
Once a veteran follows these steps and perfects an appeal, the claim is then transferred to the Board of Veterans' Appeals in Washington, D.C. The Board of Veterans' Appeals decision must contain "a written statement of the Board's findings and conclusions, and the reasons or basis for those findings and conclusions and all material issues of fact and law presented on the record". See 38 U.S.C. Section 7104(d)(1).
Should a veteran receive a denial by the Board of Veterans' Appeals, he or she has the following options to consider:
1. Filing a re-open claim at the regional office;
2. Filing a Motion for Revision of a previous final regional office adjudication or Board of Veterans' Appeal decision on the ground that it contains clear and unmistakable error;
3. Filing a Notice of Appeal with the Court of Appeals for Veterans' Claims; or
4. Filing a Motion for Reconsideration with the Board of Veterans' Appeals.
The key factor in determining which option to pursue is to protect the "effective date" of a claim that is in the best interest of the veteran. The veteran has 120 days from the date stamped on the Board of Veterans' Appeal denial decision to file a Notice of Appeal with the United States Court of Appeals for Veterans' Claims, only if counsel is admitted to practice before the court as I am.
A veteran has an absolute right to retain an attorney to represent him or her before the Department of Veterans' Affairs. A veteran can be represented by counsel once he or she receives the denial for VA benefits in order to file a Notice of Disagreement seeking appellate review of the denial. Counsel can also represent the veteran before the Board of Veterans' Appeals and/or the United States Court of Appeals for Veterans' Claims.
As mentioned above, at Doyle Law Team, we do not require any up front payment for representation. Our standard contingency fee for VA Disability representation is 20% of the back benefits. Fees are withheld by the VA and sent directly to our office and the Veterans' back benefits, after the deduction of any fees, are sent directly to the veteran. It is important to note that our fees are only taken from the back benefits and all future monthly benefits are fully kept by the veteran. Simply put, it means that our office earns no money and does not get paid until or unless there is a recovery actually paid out and received on the veterans' claim. In our office, we will present to you a written agreement that fully sets forth and limits our contingency fees and promises to take the claim on a strictly contingent fee basis if we accept the claim after speaking with you. You may make an appointment to discuss your claim with me directly by making a telephone call to our office and answering some initial questions. We never charge for an initial consultation, whether you decide to hire us or not.
This area of practice allows me to represent Veterans' nationwide. We can discuss your entire claim by telephone and all forms, contracts and other written agreements can be done via mail. However, I am available to meet with you personally as many times as necessary through the process of obtaining Veterans' benefits on your behalf until all appellate process rights have been exhausted. If you have any questions about your potential Veterans' benefit claim, please do not hesitate to call and make an appointment to meet with me to discuss how best to proceed with your VA disability claim.
