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Please print clearly or type. Benefits Checklist. Forms on this page are all in. Bryant, 23 Vet. In regard to the duty to suggest the submission of overlooked evidence, the Court in Bryant clarified that "nothing in the regulation limits the Secretary's duties to advise the claimant to submit evidence only to those situations when the existence of such evidence is raised at the hearing;" rather, the hearing officer "must suggest the submission of evidence when testimony during the hearing indicates that it exists or could be reduced to writing but is not of record.
Compliance with VA Procedures A key legal requirement for all claimants to be aware of is that VA must follow its own procedures, specifically including the MMR, in deciding a claim. The U. Supreme Court has stated that, "[w]here the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures.
This is so even where the internal procedures are possibly more rigorous than otherwise would be required" by statute or regulation. Morton v. This is important when VA takes a "short cut" to save time or effort and then denies a claim.
The law is that even if a regulation requires less effort than a procedure used by VA in similar circumstances, VA cannot pick and choose when to follow its own rules and when not to do so.
See Castellano v. Yet, 38 C. Compliance with the MMR can also be reasonably raised by the record such that the Board should address the issue. See Schafrath v. A regional office's failure to follow the MMR and the Board's failure to identify such issues frustrates judicial review, warranting remand. See Tucker v. Veterans Benefits-Veterans Law 3.
The legal requirements that VA must follow are created by Acts of Congress and codified in statutes. The VA Secretary, however, has very broad powers to prescribe the many rules and regulations "necessary or appropriate" to carry out those legal requirements.
And, as long as the Secretary's actions "are consistent" with the laws enacted by Congress, a court will not interfere with VA's decisions. Congress, however, has long recognized that veterans have earned special consideration for their service to the country.
In recognition of this service, Congress has imposed several special duties and requirements on VA to ease the burden on veterans seeking benefits.
Claimants should be aware of these special considerations because they provide a veteran with significant advantages in seeking an award. Non-Adversarial System There is a "basic principle of the VA claims process that claims will be processed and adjudicated in an informal, nonadversarial atmosphere, and that to ensure a just outcome under this rubric VA will assist claimants in many ways.
A claimant for VA benefits has avenues to seek redress before the Secretary within the non-adversarial VA system motions for reconsideration at the Board, motions alleging clear and unmistakable error in Board or VARO decisions, requests for vacation of Board decisions based upon denial of due process, and even requests for equitable relief from the Secretary have long been available.
Unlike other federal benefits systems, such as the Social Security Administration process, the VA claims process is intended to be "non-adversarial, paternalistic, uniquely pro-claimant.
This does not mean that a claimant should "file and forget" a claim and expect VA to award a claim without questions, but Congress has removed or reduced many of the most burdensome aspects of obtaining federal benefits for VA claimants. A significant advantage for veterans seeking benefits is that VA has no formal "pleading" requirements. This eliminates the need for a claimant to identify the specific benefits and the specific legal bases for an award when submitting a claim.
Instead, VA claimants only have a general duty to file a "substantially complete" claim. It is important to keep in mind that, even with the advantages provided by Congress, a VA claimant still has the responsibility to present and support a claim for benefits.
This means that an application must provide enough information to allow VA to reasonably attempt to develop a claim to meet the legal requirements for an award. This is not a high threshold, but a claimant must meet it to have VA assist with a claim. Principi, 17 Vet. Filing an appeal to the Court thus is not an action within the "non-adversarial, manifestly pro-claimant veterans' benefits system. See Forshey v. However, the Court of Appeals for Veterans Claims' proceedings are not non-adversarial.
Before the Court, the Secretary becomes a represented appellee in an appellate court adversarial proceeding. Duty to Assist In requiring the VA benefits system to be a "non-adversarial" process, Congress has imposed on VA a "duty to assist" claimants.
The most significant VA duties are discussed below. In general, VA is required to notify a claimant of what information is required to obtain an award of the benefits requested. VA also has a duty to obtain a veteran's service records, service medical records, VA treatment records, and any other government records such as Social Security Administration records that reasonably may contain information supporting the claim. These duties significantly ease the burden on claimants in assembling the evidence needed to support a claim.
The duty to assist, however, does not mean a claimant has no responsibility for his or her claim. Even if a claim satisfies the minimum threshold for the duty to assist to apply, the law requires VA only to "assist" a veteran with the development of the evidence in support of his or her claim: there are limits on what VA has to do to help a veteran. A claimant seeking a benefit, still has a responsibility to be an active participant in the claims process if he or she wants to be successful.
VA has other duties that can be helpful to claimants in certain circumstances. If an award is made, VA has a duty to look for ways to maximize the benefit paid to a claimant based on the evidence. This means that VA has to consider all the possible diagnostic codes that could apply and base an award on the code or codes that result in the highest payment.
VA also has to identify and grant awards for "inferred" claims, which are claims that the evidence supports but the claimant did not specifically request. Both of these duties make it easier for veterans to receive the greatest benefit possible without having to be an expert in VA law. A claimant also needs to keep in mind that, the duty to assist aside, VA also has responsibilities to follow the law and to prevent improper awards. As a practical matter, this means that the system eventually becomes "adversarial" when VA decides that an award cannot be granted.
Further, the huge backlog of claims has strained VA's resources and continues to result in a high rate of errors.
For these reasons, claimants should remain actively involved in their claims and maintain a healthy skepticism of VA decisions throughout the process to avoid a wrongful denial.
If he or she does not do so, VA does not have to process the application. VA does, however, have a "duty to notify" the claimant of the information needed to make the application complete enough to process. Although exactly what makes an application substantially complete is not defined, VA usually requires at least the following minimum information for a substantially complete application: 1 claimant's name and, if not the veteran, the relationship to the veteran upon whom the application is based; 2 the medical condition s claimed; and 3 the claimants signature.
Pension claims also require a statement of income before VA will begin processing the claim. Whatever the reason, if VA determines that an application is not substantially complete, VA has to notify the claimant of the information that it believes is needed to complete the application.
Once a substantially complete application has been submitted, VA has a second "duty to notify. Each time a new issue or claim arises, VA has the same duty to notify the claimant of what information is needed and who VA or claimant is responsible for obtaining it. Section A notification requirements cannot be met through a combination of unrelated decisional and postdecisional communications. Mayfield v.
Section requires VCAA notification to be issued "prior to the initial decision of the claim, not afterwards. The Court must assess the Board's notification analysis as a whole to adequately determine whether a factual finding regarding 38 U. Prickett, 20 Vet. Nicholson, 21 Vet. The Court reviews the Board's determination that VA satisfied its duty to assist under the "clearly erroneous" standard of review.
Nolen v. If a claimant requests assistance in obtaining records from private physicians and hospitals, VA is required to try to obtain those records as well. However, VA is not required to continue to request or wait for records if it determines that the records do not exist or further efforts to obtain the records would be futile. In addition, VA will not pay for obtaining private medical records.
As a practical matter, VA usually can obtain records from government agencies and the military without significant problems. There are situations, however, where VA does not properly request documents or the documents have been lost or destroyed by another agency. VA must inform a claimant of its failure to obtain relevant records. A claimant can and should submit his or her copy of relevant documents even if VA is technically responsible for obtaining the information because the lack of relevant information can result in denial of an otherwise valid claim.
Gardner v. Shinseki, 22 Vet. VA is statutorily required to "make as many requests as are necessary" to obtain a veteran's relevant service records in the custody of a Federal department or agency. Principi, 16 Vet. This duty includes making "reasonable efforts to obtain relevant records including private records that the claimant adequately identifies to the Secretary and authorizes the Secretary to obtain.
If the Secretary is unable to obtain all of the records sought, the Secretary must provide notice to the claimant that "identif[ies] the records that the Secretary was unable to obtain," "briefly explain[s] the efforts that the Secretary made to obtain those records," and "describe[s] any further action to be taken by the Secretary with respect to the claim. These requirements also apply to private documents. But, the "duty to assist in the development and adjudication of a claim is not a one-way street.
Brown, 8 Vet. VA's duty to assist includes making "reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit. The Board's determination whether VA fulfilled its duty to assist generally is a finding of fact that the Court reviews under the "clearly erroneous" standard of review.
See Nolen v. Cromer v. Pursuant to 38 U. Where a claimant's records are lost or destroyed, VA has a "heightened" duty to assist the claimant that includes advising him that his records were lost, advising him to submit alternative forms of evidence to support his claim, and assisting him in obtaining his alternative evidence. Washington v. Nicholson, 19 Vet. Derwinski, 3 Vet. However, the Court cannot grant an appellant's claim solely because his records were lost because that remedy "would amount to a judicial amendment of the statutory duty to assist-a measure beyond the power of this court.
A veteran bears the burden of showing error on this issue. See Hilkert v.
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When medical records are lost, it warrants a heightened duty by the Secretary and the Board to assist and explain the Board's findings.
See Vazquez-Flores, supra; see also Cromer v. Nicolson, F. Brown, 9 Vet. Principi, 3 Vet. VA, however, does not have to provide a medical examination in all cases. The standard for providing a medical examination is usually not difficult to meet.
Update your VA health benefits information (VA Form 10-10EZR)
VA, however, can refuse to provide a VA medical examination unless there is some reasonable possibility that an examination will provide information that could be useful in deciding the claim.
In other words, the claimant must first provide some reason for VA to believe that a medical examination would be helpful in resolving the claim. A claimant's own statement that his or her symptoms have continued since service or a previous medical examination report can be enough of a reason.
Should VA schedule a medical examination, a claimant has a duty to report for the examination. In most cases, if the claimant does not show up for an examination, the claim s associated with that examination can be denied without further development. There are some reasons for failing to show for a scheduled examination, such as illness or urgent family emergency, that can be excused. Even so, claimants should make every effort to reschedule an examination in advance to avoid problems.
As part of his duty to assist, the Secretary must "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit" including a medical examination.
The Secretary must provide a medical examination or obtain a medical opinion "when such an examination or opinion is necessary to make a decision on the claim. McLendon v. The requirement that the evidence indicate that a condition "may be associated" with service establishes a "low threshold.
When deciding whether an examination is necessary, the Secretary shall consider the evidence of record, "taking into consideration all information and lay or medical evidence including statements of the claimant. Nicholson, No. Hartman v. West, F. In making that decision, VA must consider three other duties owed to the claimant: 1 duty to identify inferred claims, 2 duty to consider all reasonable legal theories, and 3 duty to maximize benefits.
In other words, VA has several duties to apply the rules to the facts in a case in whatever way provides the most generous benefits allowed by the law. These duties do not mean that VA has to look at every possible combination of rules and facts that may be even remotely possible.
VA, however, has to review the entire record and apply the applicable provisions of law that are reasonably raised by the evidence.
In addition, whether or not new claims are identified, VA must also review the diagnostic codes for the code or combination of codes that results in the highest benefit for the claimant. Overall, in creating the duty to assist Congress recognized that VA raters are better trained and more experienced with the rules for obtaining benefits than the average claimant. VA must look for claims and grant awards based on all the evidence in the C-file whether or not the claimant asked for the specific benefit.
This is a very good reason for claimants to provide as much information as possible when submitting applications or responding to VA requests. Benefit of the Doubt A key difference between the VA benefits system and other federal benefits systems is the standard for how convincing the evidence has to be in order to support an award.
In legal terms, this is called the "standard of proof" or the "evidentiary standard. This is a very high evidentiary standard. In VA benefits cases the standard of proof is a "preponderance of the evidence.
Because "preponderance" means the "majority," an award should be granted when the evidence supporting a claim is ever so slightly more than the evidence against a claim. Another way of stating this is that VA is supposed to grant a award unless more evidence is against the claim than supports the claim. The preponderance of the evidence standard leads directly to another important rule, known as the "benefit of the doubt" rule.
The law requires that, after consideration of all the evidence, if there is an approximate balance of positive and negative evidence, the benefit of the doubt in resolving each such issue should be given to the claimant. In other words, if VA finds that the evidence is equally divided between evidence supporting a claim and evidence against a claim, such as two conflicting medical opinions, the claimant gets the benefit of the positive evidence.
For this reason, the rule is also known as the "tie goes to the runner" rule, where the claimant is the runner. The benefit of the doubt rule, however, is widely misunderstood and is often the source of great frustration for claimants. Despite what many believe, the rule does not mean that VA must make an award anytime a claimant submits an account of an event supporting an award. The rule also does not mean that VA has to believe a claimant, a claimant's spouse, or claimant's doctor when other evidence is in conflict with their statements.
VA is always required to weigh such evidence against other evidence, such as service records or other medical opinions, but VA can find other evidence more convincing. All the rule really means is that when all the evidence on a particular issue is equally balanced between positive and negative, VA must give the benefit of the doubt to the veteran on that particular issue.
The rule only applies when there is a close call on some issue: when the evidence tilts one way or the other, the rule does not apply. Further, giving the benefit of the doubt on one issue does not mean the entire claim must be resolved in favor of a claimant.
This is because the rule is applied to individual issues, not an entire claim. So, for example, resolving whether a certain event occurred during service using the benefit of the doubt rule does not have any effect on the issue of whether there is a nexus between the incident and a current condition. If the evidence is strongly against a nexus, the claim will still be correctly denied. Pursuant to 38 C. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.
Section 3. Thus where the Board concludes that the evidence is not in equipoise, specific consideration of section 4. See Schoolman v. Mayhue v. Shinseki, 24 Vet. Perhaps the analogy most helpful to an understanding of the "benefit of the doubt" rule is that the standard is similar to the rule deeply embedded in sandlot baseball folklore that "the tie goes to the runner. Gilbert v. The Court has held that the failure of the BVA to apply the benefit of the doubt rule or to set forth clearly its reasons for not applying it constitutes error.
See O'Hare v.
In addition, the Court notes that 38 U. Furthermore, when the BVA can cite no evidence or facts by which to impeach or contradict a claim, there is no justifiable basis upon which to deny application of the doctrine under 38 C. Sheets v. Because the benefit of the doubt rule only applies in these specific situations, the rule is not applicable to many claimants.
In cases where there is significant evidence in support of a claim, however, VA must provide a satisfactory explanation as to why the evidence was not balanced enough to apply the rule if the decision was adverse to the claimant.
Nexus Letter A "nexus letter" is a document prepared for a claimant by a medical professional that explicitly connects an in-service event to the current medical condition for which a claimant is seeking compensation.
A claimant is not required to submit a nexus letter, but such a letter can make the difference between an award and a denial. Submitting a properly worded nexus letter as early as possible in the process, however, is good practice. Without a nexus letter, the claim will be denied. Even when a claimant supplies supporting medical evidence with an application, VA raters can and often do choose the opinion of the VA examiner over a private physician's opinion for many reasons.
One reason for raters favoring VA examiner's conclusions regarding a nexus when there are conflicting or unclear medical opinions is that VA examiners are more familiar with the terms that raters look for when deciding a claim. As described above, VA regulations require only that it be "at least as likely as not" that a condition be related to service for an award.
Most medical professionals, however, are not familiar with the VA system or the VA concept of "at least as likely as not. As a result, private physicians may apply the wrong standard if the VA terms are not explained to them.
Even then, a private physician may be reluctant to state a conclusion regarding nexus and, if they do, may qualify their conclusion with terms such as "may," "could," "suggests," or "possibly. To prevent such misunderstandings, a claimant should make sure that the medical professional asked to provide a nexus letter understands the importance of the letter and of using the VA "magic words" to correctly state the physician's medical opinion.
Any other terms may be misunderstood or misconstrued by VA into something not supporting service-connection. The Court has stated that "when a nexus between a current disability and an in-service event is 'indicated,' there must be a medical opinion that provides some nonspeculative determination as to the degree of likelihood that a disability was caused by an in-service disease or incident to constitute sufficient medical evidence on which the Board can render a decision with regard to nexus.
The Court has also noted that medical evidence that is too speculative to establish nexus is also insufficient to establish a lack of nexus; a VA medical examination must be undertaken to resolve the nexus issue.
Jones v. If the Board finds his or her testimony credible, a claimant does not need competent medical evidence to substantiate his or her claim. See Savage v.
Gober, 10 Vet. Arneson v. Effective Date The determination of the effective date for an original claim or a reopened claim is governed by 38 U. See 38 C. Significantly, "the effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA.
The effective date may also be the date on which entitlement to the benefit arose, if later than the date of the claim. A challenge to a decision assigning an effective date with which a claimant disagrees may be made through a direct appeal of the decision, commencing with the timely filing of a Notice of Disagreement.
The NOD must be in writing and filed within one year "from the date of mailing of notice of the result of initial review or determination. Rowell v. Principi, 4 Vet. Alternatively, if the decision assigning an effective date has become final, a claimant may only pursue one of the statutory exceptions to challenge the finality of that decision.
See DiCarlo v.
However, in Rudd v. The Court reasoned that to allow such claims would vitiate the rule of finality. Although there are numerous exceptions to the rule of finality and application of res judicata within the VA adjudication system, a freestanding claim for an earlier effective date is not one of the recognized statutory exceptions to finality.
See DeLisio v. A claimant may establish an effective date earlier than the date of the claim if the claimant is able to show an increase in disability in the one-year period preceding the claim. Hart v.A claimant may establish an effective date earlier than the date of the claim if the claimant is able to show an increase in disability in the one-year period preceding the claim. Yet, 38 C. VA has developed a detailed procedures manual, the Compensation and Pension Manual Rewrite designated by VA as the "M MR" manual , to guide its raters and reviewing officials who adjudicate benefits claims.
This event is important to many veterans because a large number of military service records were destroyed. In addition, VA will not pay for obtaining private medical records.
The standard for providing a medical examination is usually not difficult to meet.
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