SOTS OCTOBER 21-23, 2009

1. SOTS OCTOBER 21-23, 2009 IDENTIFYING AND PREPARING READY-TO-RATE CLAIMS

2. OVERVIEW Discuss what makes a claim ready-to rate and its path to the rating board. We will identify the different types of claims. Look at what the VA’s responsibilities are and what the claimant’s responsibilities are. And finally, what we can do to develop the different types of claims.

3. Valid Claim Medical/lay evidence sufficient to support contentions Status Income (if applicable) What makes a claim “ready-to-rate”?

4. Triage Pre-Determination Rating Post Determination Path to the rating board

5. INFORMAL -- 38 CFR 3.155 FORMAL -- 3.151(a) ORIGINAL -- 3.160(b) FINALLY ADJUDICATED CLAIM -- 3.160(d) REOPENED -- 3.160(e) NEW CLAIM FOR INCREASE – 3.160 (f) TYPES OF CLAIMS

6. TYPES OF CLAIMS Informal Claim – “Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans” Submitted by: - Claimant - His/her duly authorized representative (if POA in effect at that time) - A member of Congress - Some person acting as next friend of a clamaint who is not sui juris

7. TYPES OF CLAIMS Informal (cont) Receipt of informal claim requires VA to send claimant application form. Formal claim must be received by VA with one year of date application is mailed to claimant

8. TYPES OF CLAIMS Formal Claim – A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. Original Claim – An initial formal application on a form prescribed by the Secretary.

9. TYPES OF CLAIMS Finally Adjudicated Claim – An application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier.

10. TYPES OF CLAIMS Reopened Claim – Any application for a benefit received after final disallowance of an earlier claim, or Any application based on additional evidence or a request for a personal hearing submitted more than 90 days following notification to the appellant of the certification of an appeal and transfer of applicable records to the BVA.

11. TYPES OF CLAIMS New Claim – Simply an original claim for a benefit not previously applied for. Claim for Increase – Any application for an increase in rate of a benefit being paid under a current award, or resumption of payments previously discontinued.

12. REOPENED CLAIM New and material evidence is required to “reopen” a claim. (38 CFR 3.156) What is new and material evidence?

13. New evidence means existing evidence not previously submitted to VA decision makers. • Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. NEW AND MATERIAL EVIDENCE

14. The Veterans Claims Assistance Act (VCAA) of 2000, PL 106-475, requires substantially complete applications for VA benefits. All development must be completed before deciding a claim unless VA can grant the claim with less evidence than requested. VA’S DUTY TO ASSIST - 38 cfr 3.159

15. VETERANS CLAIMS ASSISTANCE ACT(vcaa) • A substantially “complete” claim must be submitted • Original application on appropriate VA form • Claimant’s name • Claimant’s relationship to the veteran, if applicable • Benefit claimed • Must be signed • AND IT MUST INCLUDE>>>>>>>

16. SErvice medical • sufficient service information for VA to verify the claimed service • benefit claimed • disability(ies) for which the benefit is claimed • medical evidence or directions to that evidence (21-4142 for private medical) • Lay statements/evidence

17. dEPENDENCY INCOME • Evidence sufficient to establish all dependents claimed • statement of income and net worth for non-service connected disability, death pension or parents' DIC.

18. If the application is not “substantially complete”, VA is obligated to return it to the claimant with instructions on what is lacking. DUTY TO ASSIST

19. Notice to claimant Obtain “Federal” records Obtain non-federal records (with certain restrictions) Request exam or opinion VA’s DUTY TO ASSIST

20. Submit substantially complete application Provide release for VA to obtain private records Claimant’s Duty UNDER VCAA

21. No complete application No legal standing Claim is inherently not credible Claimant fails to cooperate Claimant fails to notify VA of relevant records No Required Duty to Assist

22. VA can grant on what’s there All evidence is of record VA notified records aren’t available Further attempts would be futile Records have no bearing on issue Discontinue Duty to Assist

23. The claimant will be informed of VA decision by letter. The notification includes: • The decision. • The evidence considered. • How the decision will affect their benefits. • Appeal Rights. Notification Letter

24. Proof of service Continuity Request service medical records from veteran  VA medical center records  Medical evidence from private provider   Submitting the right evidence

25. Reopened claim • New and material evidence • Prior denial of the claimed condition was due to a lack of a current disability • Prior denial of the claimed condition was due to a lack of evidence concerning the disability, incident, event or exposure alleged to be related to the current disability • Prior denial for the claimed condition was due to a lack of a nexus What evidence is needed for

26. PTSD Agent Orange Unemployability - Employment information (employer) What evidence is needed for…

27. Pension • War time service • 90 day service 24 months after: • 9-7-80 for enlisted • 10-16-81 for officers • Medical evidence for pension • Special Monthly Pension What evidence is needed for…

28. Service (for original claims) • Application must contain sufficient information for VA to verify claimed service • Minimum service requirements – 38 CFR 3.12a

29. VA will verify service if dates only are furnished. An original, signed copy of the DD-214 is the best source. A copy that was filed with the custodian of public records is acceptable. Multiple periods require… Proof of Service

30. Medical records • Original, new claims, reopened claims and claims for increase will require some type of medical evidence. • Service Medical Records (SMRs) are a vital piece of evidence in all SC claims. VCAA says VA’s duty to assist includes obtaining SMRs. • If claimant has copies or originals of SMRs get them, copy and submit with claim!!!

31. At Reserve Center if active. Get name and address. Request claimant’s assistance. At discharge from Reserves, SMRs eventually go to NPRC or RMC. Reservists Records

32. NG records are in the custody of the Adjutant General of the state in which the NG service was/is performed. All NG records must be requested individually from the state’s AG office in writing. National Guard Records

33. Do not request copies of the veteran’s SMR’s from NPRC when you submit a claim to the VA; the VA claim will be delayed while NPRC responds to the request. The VA claim could be delayed for six months or more. Requesting Records

34. Time lost from work Evidence that the veteran sought medical treatment for his/her symptoms Relevant observations such as changes in the veteran’s Appearance Physical abilities Mental or emotional status Lay evidence v. non-medical indicators

35. Lay Person’s Statement • A lay person’s statement regarding the veteran’s complaints, when they began, how long they lasted, and the severity of the observed symptoms/illness, may be sufficient to satisfy the requirements for objective indications of chronic disability.

36. Credibility of a Lay Statement • A lay statement that is based on personal observation or experience is credible if the • Person making the statement is/was in a position to know the facts attested to • Statement is sufficiently specific to address the facts, and • Statement is not contradicted by evidence of record that is more credible.

37. 38 CFR 3.159(a)(2) Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and Conveys matters that can be observed and described by a lay person.

38. Veteran’s Testimony • When combined with an examining physician’s inability to make a diagnosis, the veteran’s testimony that he/she is experiencing the symptoms described may be sufficient to establish the existence of the illness. • Statement of combat vet carries significant weight. (38 CFR 3.304(d))

39. 38 CFR 3.304(d) Satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation.

40. Disabilities and related medical • List disability(ies) upon which claim is based • Identify dates and places of treatment • For private treatment preferably provide copies of treatment records or submit 21-4142

41. VA is required to obtain all Federal records they are aware of that are relevant to the claim. VA is required to attempt to obtain all non-Federal records that the claimant directs VA to. It is ultimately the claimant’s responsibility to submit non-Federal records VA cannot obtain. REMEMBER -- Duty to Assist

42. There is no “automatic search” for VA Medical Center records. Veteran must tell the VA the place and approximate dates of treatment. Various categories of VA medical evidence VA Medical Records

43. VA must attempt to obtain records held by other Federal agencies. HOWEVER, these must be identified with the claim Non-VA Federal Records

44. THE END ANY QUESTIONS