|Matthew Hill:||Hello, and welcome to the Hill and Ponton video blog. I’m Matthew Hill.|
|Carol Ponton:||I’m Carol Ponton.|
|Matthew Hill:||Today, we’d like to talk to you about a question that we get all the time. That is in what states do you represent veterans? Where do you practice VA law?|
|Carol Ponton:||The answer is we work all over the United States. VA law is federal law, so it’s the same in every state. There are probably not 200 lawyers who do just veterans work, and many of those have only started doing it recently. For years, we’ve represented veterans in California and Michigan, all over the US.|
|Matthew Hill:||Our main office is in Florida, and we have a lot of cases in Florida, but we are all over the US, we travel all over. As Carol said, the law doesn’t change from place to place. Unfortunately, mistakes don’t typically change from place to place.|
|Carol Ponton:||They don’t change from place to place. It’s very easy to do them all over. Everything is pretty much on the internet now. Everything is paperless, and I’ve had no problem for years doing that.|
|Matthew Hill:||Yeah, our office has been paperless for over ten years, which means we put everything on our server, and so if there’s something our clients need, and they’ve sent us hard copies, we just send that back, but we can also e-mail whatever we have been sent, and that’s how we interact with the VA as well, is that we fax stuff in. We send it to their processing center. We’ve never really had a problem.|
|Carol Ponton:||Under the VA system, they have allowed, I think, 120 lawyers to access their clients cases on the VA system. We actually are able to go into the VA and access our clients, wherever they are in the US, and look at all the things that have been filed, what’s going on with their case.|
|Matthew Hill:||Essentially, the answer to that question is nationwide. We can represent you wherever you are. We are familiar with all 50 … What is it? 58? They always change the number. 58 different regional offices.|
|Carol Ponton:||He didn’t major in math.|
|Matthew Hill:||I’m a lawyer for a reason. Thank you for joining us today. We hope to see you again on the site soon.|
One would think you can hire an attorney the minute you realize you don’t have any benefits or compensation that is rightfully deserved, but that’s not quite the case. In order for you to hire an attorney for VA benefits and compensation you must have already applied and received an initial denial. At the time you have received your denial and disagree, you will have the opportunity to respond with a notice of disagreement. A notice of disagreement can just be a letter request for them to re evaluate/reconsider their initial decision written on the VA form 21-0958, in which either can be submitted by you or your newly hired attorney. You don’t always need an attorney however. Allow me to guide you on how the process works!
The process to receiving benefits from the VA begins with filing an initial claim. To file an initial claim you can simply fill out and submit a specific VA form required to apply for benefits to the VA. The forms you must use for the initial application of a claim are the VA form 21-526eZ and VA for 21-526b which can both be found online:
I can see why the thought of initializing your case all on your own with no professional help can be scary, and that’s extremely understandable. In this case we recommend you seek out the assistance of a Veterans Service Officer to assist you with initializing your claim to assure you begin the process properly. The Veteran Service Officers can not only assist in initializing your claim for benefits/compensation but they can also assist or guide you with any veteran related issue. For example they can also assist you with the following:
- Health Care
- Education & Training
- Burial & Survivor
Your local VA center will have a listing of Veteran Service Organizations you can contact for assistance. No you do not have to be a part of these organizations in order to receive assistance. The VA website can also provide this information for you in the case you cannot go in person.
Once you have filed your claim for benefits, and received a decision that you do not agree with, you can then seek out the assistance of an attorney. Why do you have to wait to receive a denial before being allowed to hire an attorney you ask? By law attorneys are not allowed to charge a fee for assisting prior to a notice of disagreement being filed.
You may ask, why hire an attorney if a VSO can assist you with your claim free of charge? This is a valid question. Ultimately, the decision is yours. You know your case better than anyone, so only you can decide what is best for your claim in terms of representation. The difference between an attorney and a Veteran Service Officer is simple, an attorney knows the law and what is beneficial for you as a vet. The purpose of a VSO is to assist you the veteran in finding the resources you need when you need them. The benefit of hiring an attorney is having someone who knows the laws in a manner that benefits you while assisting you obtain the compensation you deserve. For more information on selecting an attorney click on the link below:
As of June 2007, disabled veterans are now able to hire an attorney immediately after filing a Notice of Disagreement at the VA regional office (VARO). Typically, an NOD (Notice of Disagreement) is filed after an RD (Rating Decision) is issued by the VA. Prior to this date, veterans could not hire attorneys to assist with their legal representation until the later phases of their appeals process, which can take years to complete. Hiring an attorney early in the VA appeal process allows the veteran a better opportunity to present a well developed claim-file supporting the veteran’s case. But, many veterans would rather, at least at first, represent themselves in their ensuing battle with the VA to get their rightful benefits. Before any veteran self represents, he/she should decide whether it is worth his/her while to “go it alone”, or opt for legal representation. In most cases, because of the time it takes a self-represented veteran to get a favorable decision from the VA, as opposed to having a competent attorney prepare arguments, most will opt for an attorney. The reason being, the VA does make it a tough, and sometimes grueling process, and often times, veterans lose hope that any kind of decision will ever be made towards their claim(s). The key is to not get ambushed navigating through the claims process, and the veteran must understand that the VA can deny a claim for any number of reasons.
The average service organization representative has over 1,000 claims. An attorney, on the other hand, will only take the number of veterans claims the law firm can provide competent and expert legal assistance to at any particular time. Next, attorneys do not rely on the VA to develop the evidence to support the claim. A competent law firm representing veterans in their disability claims uses medical professionals to ensure each and every claim by the veteran meets the standard of proof required by the BVA (Board of Veterans Appeals) and the CAVC , (Court of Appeals for Veterans Claims). The goal is to prove the claim at the lowest level possible for the veteran, but at the same time prepare for any judicial proceedings.
The bottom line when deciding whether to hire an attorney or not in obtaining rightful disability benefits is this: the key to any successful disability claim is proper representation. There are so many steps to take in the claims process, and, as in anything, the path a veteran takes to get from step to step is filled with traps and pitfalls for the inexperienced. It is essential that a veteran has appropriate legal representation by an expert attorney, one who will certainly ensure the most beneficial outcome of his/her claims, and will walk hand in hand with the veteran through the landmines that are the VA’s appeals process.
We are often asked by veterans, “When will I receive my benefits, or why is it taking so long, or how much more blood do they need before I get my money?” These are very legitimate questions that can be difficult to answer due to the steps required to prove eligibility; regardless of the circumstances. Unfortunately, there is a lengthy process, more formally known as the Claims Process, which must be followed before any benefits can be awarded.
As most veterans and the public in general should know by now, the VA has undergone a significant overhaul since the debacles of the system were announced by the media back in April of this year. They have, in fact, made significant progress in accelerating access to health care and addressing the numerous deficiencies within the system. Their ultimate goal is to improve service delivery to veterans in an effort to rebuild trust with them and all Americans. This was as of a result of the implementation of the Accelerated Access to Care Initiative. Despite the changes and improvements in place, when it comes to filing claims for compensation benefits, a series of steps still must ensue which continue to “drag-out” the process for receiving benefits.
There are eight distinct steps that must be followed for the majority of disability compensation claims. Listed below are the steps with a basic explanation provided.
- Claim – The veteran submits a claim for disability benefits to their local RO. Depending on the mode of transmission, i.e., electronically or by U.S. mail, will determine how quickly the claim is entered into the system. Obviously, those claims that are mailed will take longer versus those submitted electronically (at least in theory).
- Review Process – Your claim will be reviewed by a VA representative who makes the determination if additional documentation to support your claim is necessary.
- Evidence – The VA will inform the veteran of specific documents necessary to support the claim. This is primarily for those cases that are questionable when determining eligibility or not.
- Review of Evidence – After review of the evidence submitted, if additional information is necessary, the veteran will be notified as to what else must be done to move forward with the claim and how much time he/she has to present the documentation. Please understand; this step could be repeated numerous times until the VA is satisfied with the evidence submitted.
- The Decision – This could be favorable or not for the veteran. Once a decision has been made, the veteran will receive a report or decision that could be in the form of an RD or SOC outlining the decision made and the evidence used in determining the outcome. Again, more evidence may be required which again takes you back to step #4.
- Pending Approval – This is not much different from “the decision” whereby additional evidence may be required and again you are back to step #4.
- Notification – Here we go again!!! The claim decision is made and mailed to the veteran. In the eyes of the VA, the process now moves to the next step. In the eyes of the veteran he/she may not agree and have to look at other alternatives have the decision amended to a more favorable one.
- Completed – The VA mails you a complete packet of information and considers the case closed. Does this mean it is over…maybe or maybe not? It all depends on the VA’s decision and if you want to continue to pursue compensation you believe is (and more often than not) what you deserve!
Over the last several months since the appointment of Secretary Robert A. McDonald, the VA has been moving forward in ways to better serve their customers – the veterans. This focus will continue via reorganization and implementation of new programs and services. The end result will hopefully make the VA a better, stronger, and faster organization for all veterans.
Does filing a lawsuit against the government affect other benefits that veterans or their families may receive? That’s a common question asked by many military personnel. The answer is no.
Claims against the Veterans’ Administration fall under the Federal Tort Claims Act (FTCA), and only a handful of attorneys focus their practices in this area of law. It is important to know who can bring a claim against the VA and understanding how it differs from claims in the private sector, and every military employee and their families should be aware.
When a veteran is injured by a VA doctor or other employee of VA, he/she has two legal remedies available, either file a claim with the VA for disability compensation and/or seek monetary damages under the FTCA. Any veteran can file a Federal Tort Claim against the VA, or, if required, file a lawsuit in order to seek compensation for an injury caused by medical negligence. There are cases where an injury causes the death of a veteran, and in these circumstances, any family member, or in certain cases, even a friend, would be allowed to proceed on behalf of the deceased veteran.
Unlike service disability claims which are filed with a VARO (VA Regional Office), tort claims are filed with the VARC (VA Regional Counsel) responsible for the region where the veteran’s injury took place, and unlike the VA rating system for service-connected disabilities, money damages under the FTCA are not based on an evaluation of how a veteran’s disability impacts their ability to earn a living, but rather, on their suffering and the economic loss resulting from the injury. Differing from disability compensation, which is paid monthly over a number of years, a veteran receives one lump sum upon the success of an FTCA lawsuit, and service-connected disability pension payments are not affected by bringing a federal tort claim. There can be circumstances under which benefits other than disability pensions will be offset against a recovery in the setting of the FTCA. An example of this is when a veteran is the victim of a medical mistake on the part of VA healthcare providers, and he/she applies for non-service connected pension. If granted, that application can result in a monthly compensation payment.
For the veteran, it usually boils down to a decision of whether to accept payment from the VA in increments, which can be revised or cancelled at any time, or accepting a lump-sum payment. It is best for any veteran or survivor interested in pursuing a tort claim for medical negligence to discuss their specific benefit situation with their attorney at the very outset of the process.
Combat-Related Special Compensation
At Hill & Ponton, we are often asked questions about different types of compensation and pension. While our firm does not handle military or VA pension matters, it is still beneficial for veterans to be aware of other types of compensation that are available to them under certain circumstances. This post is going to discuss Combat-Related Special Compensation (CSRC).
Veterans who are eligible for military retired pay have had a long struggle with the VA to receive both military and VA benefits. In the past, the VA would not allow veterans to receive full military retirement benefits in addition to VA disability compensation. Now, retiree veterans can receive full retire pay and full VA benefits thanks to the Combat-Related Special Compensation program (10 U.S.C. § 1414) under the following conditions:
- Retiree veterans with at least 20 years of service, and who have 100% s/c schedular rating, are entitled to receive their entire military retirement payment as well as their entire VA benefits (concurrent receipt)
- Retiree veterans with at least 20 years of service, and who are rated totally disabled due to individual unemployability (TDIU), are entitled to receive their entire military retirement payment as well as their entire VA benefits (concurrent receipt)
- Retiree veterans with at least 20 years of service, and who have s/c disabilities rated between 50-90%, are entitled to receive their entire military retirement payment as well as their entire VA benefits (concurrent receipt), starting December 31, 2013 after the initial phase-in.
- Veterans who were medically discharged under Chapter 61 and have a VA disability rating of at least 10% for a combat-related disability (ies) may be entitled to concurrent receipt of part of their military medical retirement pay and VA compensation for the disability, regardless of the number of years served.
So now the big question: is CRSC taxable? The answer is: No. The Armed Forces Tax Council (AFTC) determined that all CSRC payments are exempt from Federal Income Tax under section 104 of title 26, United States Code. This is incredibly beneficial because qualified veterans (under CRSC) can receive special compensation and VA disability pay, both being tax-free.
Note: There is another type of special compensation, Concurrent Retirement and Disability Payment program (CRDP), that is issued by the Department of Defense and that is subject to taxation.
Unlike VA disability compensation, CRSC terminates on death, and therefore survivors are not entitled to this benefits after the veteran’s death. However, if the veteran had applied for CRSC before his death, and was awarded after his death, the retiree’s estate is entitled to the CRSC benefits that would have been paid from the approved effective date to the date of the retiree’s death.
Further Qualifications for CRSC
In order to qualify for CRSC, the retiree veteran must have a disability(ies) that has been service-connected by the VA at 10% or more. In addition, the disability(ies) must be combat-related. In order to be considered as “combat-related”, qualifying disabilities would have had to be the result of one of the following:
- Direct result of armed conflict
- Instrumentality of war
- Performance of duty under conditions simulating war
- Engagement in hazardous service
When the Rating Board denies a veteran’s claim, the veteran has the option of having his appeal handled in the “traditional” fashion or by the Decision Review Officer (DRO).
Under the traditional appeal procedure, an employee from the Rating Board reviews a denial and makes a determination whether the claim should continued to be denied.
Under the DRO appeal, a senior rating officer at the Regional Office, reviews the decision. In that review, the DRO is required to make a decision without any deference to the first decision by the Rating Board. In other words, the DRO reviews the evidence and makes a decision without considering the Rating Board denial.
In our practice we normally request the DRO process. It normally gives our veterans an experienced rating officer who has the ability to set aside a bad decision made by the Rating Board.
Yes, a veteran can receive both. However, this applies only to SSD benefits and VA compensation benefits. It does not apply to SSI or VA pension benefits. These benefits are income and asset tested and cannot generally be combined with other benefits.
The VA ratings schedule is designed to approximate the loss of wage earning capacity of an injured veteran. However, some veterans, with catastrophic injuries, are entitled to benefits above the 100% schedular rating. These are called Special Monthly Compensation (SMC) benefits.
The ratings tables discuss the entitlement to SMC. It is based on the need for extraordinary care and the loss of certain organs. This is a complicated area of veterans law and, if you have questions about it, you should have an attorney review your C File to make sure you are receiving appropriate SMC benefits.
Generally, the VA assigns an date as the date on which the granted claim was filed. So, if a veteran has been filing the same claim for twenty years, he will normally only get an effective date back to the date the successful claim was filed.
There are some important exceptions to this rule. The first involves CUE claims. These claims are explained in another post. CUE claims are difficult to prove and are very strictly interpreted by the court.
Another exception to the rule involves a claim which is granted based on newly discovered service department records. If claim for service connection has been denied for years and is then granted when new unit records are discovered, the regulations require that the VA consider an effective date back to the time whent he first claim was filed.
Another important exception involves claims for increase. A claim for increase normally results in an effective date back to the date of the filing of the request for an increase. However, under the regulations, the VA can grant benefits up to a year before the filing if the increased condition existed prior to the filing.
For more information, read our updated post about how to request an earlier effective date.
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