How Does One Apply for VA Compensation or Pension Benefits?
There are 2 types of applications for VA Compensation and Pension – undeveloped claims and Fully Developed Claims. Undeveloped claims rely on the Regional Office for development of evidence and often result in denials. Fully Developed Claims are more likely to lead to favorable decisions.
Understanding Undeveloped and Fully Developed Claims
- What Developing a Claim Means
- Understanding VA's Duty to Assist
- The Ease of Application for Compensation Has an Adverse Effect
- The Fully Developed Claim
- Help Veterans Service Representatives to Use Their Time Allotment Productively
The Various Ways to Submit an Application for Benefits
- Claimant Makes Application without Any Assistance
- Claimant Makes Application with the Help of a Service Organization
- Claimant Makes Application with the Help of an Accredited Attorney or Agent
- Claimant Makes Application with the Help of the Senior Veterans Service Alliance
The Elements of a Fully Developed Claim for Compensation
- Help Veterans Service Representatives Understand the Theory of the Claim
- Use VA Form 21-4138 to Summarize a Claim for Compensation
- Obtain and Organize Your Medical Records
- Organize All Other Evidence
- Write a Concise Lay Statement When Needed
- Submit Your Own Medical Opinion from a Competent Licensed Health Provider
- Inadequate Verses Adequate Medical Opinions
- Court Precedent Rulings on Adequate Medical Opinions
- The Difficulty of Obtaining an "Adequate" Private Opinion
- The Challenge with a "Development to Deny"
The Elements of a Fully Developed Claim for Pension
- Application for Pension
- Application for DIC, Death Pension, and/or Accrued Benefits
- Appointment of Individual as Claimant's Representative
- Authorization to Disclose Personal Information to a Third Party
- Exam for Housebound Status or Permanent Need for Regular Aid and Attendance
- Request for Nursing Home Information in Connection with Claim for Aid and Attendance
- Income and Asset Statement
- Doctor Report Addendum
- Care Provider Certification of Services
- Independent Living Community Certification of Services
- Cover Letter for Submission
- Submitting an Intent to File
- Other Necessary Forms
About the Services of the Senior Veterans Service Alliance
Understanding Undeveloped and Fully Developed Claims
What Developing a Claim Means
"Developing a claim" is VA-speak for the time and effort that employees in the regional office take to gather evidence and obtain medical evaluations on the half of individuals who have made application for Compensation or Pension. Whenever an application is made, these employees who are called Veterans Service Representatives (VSRs) are required under law to pursue this development process. VA must make an effort to obtain a variety of certain forms and evidence with Pension claims. With Compensation claims an effort must be made to obtain service treatment records and service clinical records where needed, personnel records from the service when needed, government health facility medical records, DBQ evaluations, medical opinions when necessary and at least 2 attempts to obtain private sector medical records. This process can take months and uses up a great deal of the time that is allotted to VSRs for processing claims.
When we discuss what we call "undeveloped claims" we are describing the process discussed above. In particular, most applications fail to provide all of the evidence that is necessary to make a decision and instead place the burden on the regional office to find this evidence or in other words to "develop the claim." An undeveloped claim can be submitted in a matter of minutes by simply filling the 21-526 EZ form for Compensation or either of the 2 forms for Pension – 21-527 EZ or 21-534 EZ. Unfortunately, just filing the forms is not enough to generate a decision. With Compensation or Pension there is a lot more evidence and supporting documentation that is required. The burden now falls on the VSRs to request this additional information from the applicant or to generate it on behalf of the applicant.
Understanding VA's Duty to Assist
In 2000 the Veterans Claims Assistance Act (VCAA) created a change in the Department of Veterans Affairs' duties to notify and assist claimants for VA benefits. The law is codified into the regulations in Title 38 CFR 3.159.
Prior to the passage of the VCAA, the process of applying for Disability Compensation benefits and Pension benefits was adversarial. In other words, the claimant had to provide enough evidence to convince VA that the claim was "well grounded" so that VA would assist in developing for further evidence by ordering records and arranging for medical examinations. With the VCAA Congress recognized this adversarial process and did away with "well grounded" claims. Under the new rules, a veteran need only to submit enough information to trigger the "duty to assist" found in the new law by submitting a simple application called a "substantially complete claim."
Duty to assist may actually be a detriment for veterans submitting applications. What we mean by this is the typical veteran claimant or the survivor claimant puts his or her full trust in the capabilities of the Department to adequately develop the claim for a decision by gathering all of the evidence on behalf of the claimant. The assumption is the Veteran Service Representatives in the Regional Office will do the best job possible for developing evidence and provide the best decision under these circumstances. As many applicants have found out over the years, putting their full trust in VA can result in undesirable decisions or denials.
The Ease of Application for Compensation Has an Adverse Effect
The process of "duty to assist" is well-meaning. Congress did not want to put an additional burden on those applying for benefits by forcing them to take the time and spend money to gather the evidence for their applications. Unfortunately, duty to assist has often resulted in just the opposite effect. Claimants have found it so easy to take a few minutes and submit an application without any additional effort to support their applications, that the Department has been overloaded with hundreds of thousands of superfluous claims over the years. Many applicants simply turn in an application to see what will happen. Like playing the lottery, many applicants hope they might just get an award if they try. In other words they are throwing whatever they can against the wall and hoping something will stick. This attitude from claimants has gummed up the system hundreds of thousands of claims and made it more difficult for legitimate claims to get through.
We believe that employees in the Regional Offices have become somewhat jaded. They see the same questionable Compensation claims with little evidence, coming through every day and it probably causes employees to feel some reluctance for development knowing that many of these Compensation applications are meritless. Nevertheless, they must treat every claim as if it is valid.
It's not that the people in the Regional Office are deliberately trying to take benefits away. On the contrary, they rightly believe they are doing their job by questioning evidence that appears to be suspicious or lacking. Even though they are paid to be advocates for the veteran, it often appears to these people who work for VA that many veterans are trying to get something for nothing. And in many cases this is probably true. VA employees probably act adversely because of their experience in trying to prevent someone from getting a benefit to which that person is not entitled.
The suspicion from the Regional Office is not due to policy. Regulations prohibit adjudicators from exhibiting bias. It is due to questionable evidence from many years of experience dealing with this issue. One important strategy to win the confidence of the development and rating team in the Regional Office is to submit a claim that commands their respect. You do this through:
- detailed and well-argued lay statements where lay statements are needed,
- copies of your medical records that you have obtained on your own and organized in a way that the adjudicators can find the pertinent information pertaining to your claim
- copies of other documents or forms that you know the VSRs in the regional office will need to make a decision
- well-reasoned and documented medical opinions that you provide yourself and
- support from credible medical literature where necessary
The Fully Developed Claim
In 2012 VA came up with an excellent idea called the "Fully Developed Claim." Prior to this, VA's duty to assist was absolute – based on the Veterans Claims and Assistance Act of 2000. Duty to assist could not be avoided. Fully Developed Claims work equally well for Pension applications and for Compensation applications. Fully Developed Claims (FDC) for Compensation and Pension have the same goal of a timely decision but the underlying approach between the two is different due to the type of evidence and documentation that is required for each type of benefit.
The Fully Developed Claim process allows an applicant to develop his or her claim with little assistance from the Regional Office. This avoids months of records requests, unnecessary notices and other activities by the Regional Office that are not needed as the FDC claim is complete and ready for a decision. Fully Developed Claims allow processing teams in the Regional Office to meet their time constraints under the claims processing model. It is a win-win for the employee and for the applicant. New EZ forms were developed for this purpose and currently these are the forms that should be used for all applications whether fully developed are not.
Notwithstanding that the EZ form tells VA the claim is fully developed this does not necessarily mean that application will get priority handling. The information provided with the application must be sufficient to meet the definition of a Fully Developed Claim. A legitimate Fully Developed Claim is put on a fast-track for a decision. That is the primary purpose as it saves a great deal of time in developing evidence in the Regional Office. On the other hand the EZ forms are now the only way to make application for Compensation, Pension or DIC. If the form is submitted without all of the supporting documentation that is required for a Fully Developed Claim, VA will designate that claim as incomplete and will take it off of the fast-track and put it on what they call the standard track for further development. This not only slows down the decision process, but more importantly it could cause the claim to push up against the 125 day deadline for decisions and more likely result in a denial or an award for less than was expected.
Help Veterans Service Representatives to Use Their Time Allotment Productively
It is important to reduce the Regional Office duty to assist to a minimum. Veteran Service Representatives in the Regional Office are only given so much time to adjudicate a claim. For example a Compensation claim with less than 7 issues must be adjudicated within 4.65 hours. Much of the time devoted to the adjudication is a result of duty to assist. Requesting records, sending out notices, requesting missing documents, requesting records again, arranging for medical evaluations and all of the other necessary actions to develop a claim for decision take up all the allotted time and often leave little time to actually examine the evidence to make a responsible decision.
By far the best way to help the service representatives is to submit all of the documents and evidence necessary for the claim to be considered fully developed. This avoids a great deal of time developing for evidence and instead allows the service representatives to spend their precious allotted time on reading evidence and making a decision.
The Various Ways to Submit an Application for Benefits
Claimant Makes Application without Any Assistance
As mentioned above, some veteran claimants will fill out one of the EZ forms and send it in hoping to get some sort of benefit. These applications are almost without exception undeveloped claims. Unless an individual applicant is an expert on how to file for veterans benefits or that person has received detailed instructions from a competent source, the process for a Fully Developed Claim is just simply too complicated for the average layperson.
Without understanding the process that an undeveloped claim will go through, the hopeful applicant sits back and waits for the money to come in. VA has imposed upon itself a deadline of 125 days to process claims. More than 90% of claims do receive a decision within 125 days or less of submission. Unfortunately, claims that are not fully developed often receive a denial or an award of benefits that is far less than the applicant was expecting because the deadline interferes with adequate development and a subsequent fair decision. The Regional Office simply runs out of time to develop all of the evidence and has to make a decision. Or in some cases as with Pension, the award may not be the maximum benefit allowed, but the claimant really doesn't know that and accepts a far lesser amount.
Claimant Makes Application with the Help of a Service Organization
It has been the intent of Congress for the past century to make it easy for veterans or survivors to submit claims for benefits. In order to facilitate this process, Congress created a designation called called "accredited claim representative." Accredited representatives are the only individuals who have authority under the law to assist potential applicants with their claims. This does not mean that an individual has to use an accredited claim representative or that individual can enlist the assistance of someone who is not accredited. However, under the law, that person who is assisting and who is not accredited can only provide that assistance one time in that person's lifetime.
There are three types of accredited representatives – accredited representatives of veterans service organizations, accredited attorneys and accredited agents. In order to represent the interests of veterans, Congress allowed, beginning in the early 1900s, for establishment of veterans service organizations such as State Veterans Departments from all 50 states, the American Legion, the DAV, the Veterans of Foreign Wars, Vietnam Veterans of America, AMVETS and many more smaller organizations. There are roughly 150 of these service organizations typically called VSOs. These VSOs are allowed to provide training to accredit individuals in their organizations to assist with claims. There are about 10,000 accredited representatives of VSOs across the country. They are typically called "veterans service officers." The majority of them are employed as state and county veteran service officers. And the majority of all claims are processed by these state and county accredited employees.
Claim representatives of VSOs are paid a salary directly or indirectly by the service organization to assist with applications for benefits. Their services are absolutely free to potential claimants. It is the intent of Congress that no one should have to pay for assistance with submitting a claim. In fact, the law specifically prohibits service officers from receiving any kind of renumeration – other than their salary – such as a fee, or a gift or even an exchange of goods with a claimant.
If a claimant is using the assistance of an accredited representative of a veterans service organization, that representative may very well know how to do a Fully Developed Claim but will usually not take the time to do it. Service officers of VSOs are paid by how many claims they can generate in a given month or year. As a general rule, if they don't produce, they don't have a job. Putting together a Fully Developed Claim takes a great deal of time, but doesn't result in any more claims forms, for which employment credit is judged, than submitting an application that is not fully developed and takes only a few minutes to fill out. There is no incentive to submit a Fully Developed Claim and in fact for a service officer to do so on a regular basis could result in that service officer losing his or her job. As an added disincentive for submitting fully developed applications, service officers often have people waiting for their assistance and they don't have time for anything else other than filling out application forms.
At the Senior Veterans Service Alliance, we have handled numerous cases of incomplete and undeveloped claims from veteran service officers and we have rescued many of these claims. We have been able to produce favorable decisions where otherwise these claims would have met a dead-end.
Claimant Makes Application with the Help of an Accredited Attorney or Agent
The other two types of accredited representatives authorized by Congress are accredited attorneys and accredited agents. There are approximately 17,000 accredited attorneys and about 500 accredited agents. These individuals are also prohibited by law from charging fees for assistance with initial claims for benefits. On the other hand, the law is more liberal with these individuals concerning charging fees when it is not an initial claim. For example, VA policy allows for charging a fee for what is called a "prefiling consultation." A fee can also be charged after a claimant receives an unfavorable decision.
Because attorneys and agents are not paid any salaries for assisting with initial claims, and because they must assist with these claims for free, there is little incentive for these accredited representatives to do this. If they assist with a filing, they must find some other way to make money as it is difficult for any individual to abstain from any renumeration unless that person has some other source of income.
Thus, the primary motivation for accredited attorneys and accredited agents is to generate some source of income in conjunction with providing assistance with claims. Sometimes this is done through prefiling consultations, sometimes money is made by providing other services to the claimant that are not tied to the application itself, and in some cases, income is made by legitimately receiving a fee from the claimant through representing that claimant with an unfavorable decision. As a result, most attorneys and agents are not interested in assisting with processing initial claims for benefits at no cost. They may instead be looking for the fees they can generate from helping a claimant who has been denied or received a lesser benefit than expected.
Not many initial claims are processed by accredited attorneys or accredited agents even though they outnumber accredited representatives of service organizations. In fact, some accredited attorneys or agents like to advertise that they have received accreditation to bolster their public image, but many of them have little experience in filing successful fully developed initial claims.
Claimant Makes Application with the Help of the Senior Veterans Service Alliance
Claim representatives from the Senior Veterans Service Alliance (SVSA) are accredited through the Department of Veterans Affairs. These claim representatives do not charge any fees for assistance with initial applications, nor do they have any hidden agendas for making income from claimants with an initial application. The SVSA is a nonprofit organization that derives its operating revenues from other sources. The staff provide their services without being paid by the SVSA. Claimants may have to submit their evidence to another organization for a prefiling consultation determination of eligibility, but that is a separate service from what the SVSA provides free for fully developed initial claims.
The SVSA has been very successful with its cost free Fully Developed Claims program for initial claims and if a determination has been made that a potential application has merit and has a chance of being approved, the success rate is very high.
For any claimants who come to the SVSA with previous unfavorable decisions which were a result of filing an application themselves or were a result of the services of some other accredited representatives, these unfavorable decisions will be accommodated by the SVSA for further action if the claim has any merit.
The Elements of a Fully Developed Claim for Compensation
Help Veterans Service Representatives Understand the Theory of the Claim
Oftentimes, for a complex claim with a number of disability issues, there is an underlying theory of the claim that produces those disabilities. For example, a back injury in service can lead to all kinds of secondary disabilities such as stenosis, sciatica, neuropathy pain, weakness and static pain. The application for Disability Compensation, VA Form 21-526 EZ, does not provide enough space on the form to develop a theory or multiple theories of the claim. On the contrary, the application focuses entirely on the disability issues and treats them as separate issues instead of relating to a single event or multiple events that caused them.
Under duty to assist, the adjudicator is supposed to infer a theory of the claim from the evidence. The problem here is that for complex claims the theory is not always evident and the other problem is that due to time constraints, adjudicators rarely review all of the medical evidence and so they have no opportunity to see the "big picture."
It is essential that you identify the theory of the claim right up front and put it in the adjudicator' s face. If you allow the adjudicator to determine his or her own theory of the claim you have just gone down a path from which you cannot return. In other words, once the rating team in the Regional Office have determined what they think the theory of the claim is, they will not deviate from that course no matter how much new evidence you give them to show that they are on the wrong path. As a result, a denial of your claim is often inevitable no matter what you try to do to forestall it.
Use VA Form 21-4138 to Summarize a Claim for Compensation
Summarizing the entire claim on a separate VA Form 21-4138 allows you to bypass the restrictive entry options on the application form itself – VA Form 21-526 EZ. You will have ample space to discuss and identify all of the issues pertaining to your claim by tying together all of the evidence and identifying the theory of the claim. Using this approach, you can provide sufficient detail with several paragraphs of information. The form itself only gives you a space of 76 individual characters to type out all of the information pertaining to the issue you are claiming.
The key to any summary is not to overdo it. Providing too much information is just as bad as not providing enough. If you overload the rating team with pages and pages of summary, they will likely not read it as they are under time constraint. On the other hand, if you are too sketchy, they will not understand what you are claiming. We recommend no more than two or three paragraphs. This means you must work very hard to communicate your claim in as few words as possible. Writing such a summary can often be one of the more challenging aspects of filing an application.
Obtain and Organize Your Medical Records
It is essential that you obtain your own medical records. If your medical records from the service and your current medical records are extensive, there is no way the VSRs in the regional office will read all of that information. You must obtain your own records and organize them for the adjudication process. You will point out or extract the pertinent information in your records that will lead to the proper decision. Theoretically, Veteran Service Representatives must review all of the pertinent evidence that relates to that claim. In reality, this just doesn't happen. For those claims where there is a great deal of medical evidence to pour through, that evidence is never thoroughly reviewed. We have seen cases where medical records constitute anywhere from 800 pages to 1,500 pages or more. With this sort of challenge the service representative will abstain from pouring through the records and instead take a shortcut by ordering a medical exam and an opinion. The medical examiners hired by VA for these opinions are only given a about a half hour to carry out their assigned task. As far as we can tell, they never review the medical records.
Currently, all medical examinations and opinions ordered by VA are through 5 large national contractors who in turn contract with local physicians assistants and nurse practitioners and sometimes medical doctors to do these examinations. This system is flawed. Examiners are only given a certain amount of time to do the examination and in most cases, they are not even required to write adequate opinions but simply to check off a number of boxes. This system is likely in violation of the intent of the regulations and someday may be challenged in court, but in the meantime we have to put up with it.
As an example, a claims file that may have 800 pages or more of medical records, can be organized and indexed properly so that only about 10 or 20 of those pages that are necessary for a decision are presented to the adjudicator. If the medical evidence is extensive enough, you should organize a table of contents and provide an explanation for each item under that table of contents. By going through this process, it is very likely that the VSR in the Regional Office will take the time to read that evidence. It is best to summarize the medical information for them in a few paragraphs and then reference the page numbers of the actual medical record file itself.
Organize All Other Evidence
The same method that we described in the section above is used for all other evidence. This includes personnel records, pertinent medical literature, personally procured DBQs and personally procured medical opinions and any other evidence necessary for a Fully Developed Claim. Just as with medical records, this material must be organized with tables of content and cover pages identifying what it is and a short description on the cover page pertaining to the nature of the evidence.
Write a Concise Lay Statement When Needed
A well-written and detailed personal lay statement is often essential to winning an award. A lay statement is a narrative of your claim which describes in detail the incident or incidents that were incurred in service, the history since discharge pertaining to the medical repercussions from the experience in service and a description of the current disability or disabilities. Lay statements can come from the claimant or from fellow service members who were present and observed the particular incident or from a spouse or family member who has observed symptoms over the years and verifies continuity of those symptoms.
It's important to know that a lay statement cannot contain a medical nexus opinion unless the person writing the statement is a licensed medical provider and is competent to provide that opinion. However, this does not preclude the person who is writing this statement from testifying of known facts from a source that is qualified to support a nexus opinion. For example the claimant can testify of diagnoses or other conditions that were given to the claimant either orally by treating physicians or through medical records that no longer exist.
The claimant can also testify to opinions that were offered by treating medical providers. In addition, the claimant can provide substantial evidence from competent medical literature that supports his or her assertions for service connection or a disability rating decision. When using medical literature evidence, the lay statement should point out why that literature supports the service connection rating or disability rating.
Lay Evidence in a VA Compensation Claim has zero evidentiary value if the adjudicator in the Regional Office or the BVA Judge does not think it is credible and competent. When considering lay evidence, the Board or adjudicator should determine whether the veteran's disability is the type of disability for which lay evidence is competent. See Jandreau, 492 F.3d at 1377. If the disability is of the type for which lay evidence is competent, the adjudicators must weigh that evidence against the other evidence of record in making its determination regarding the existence of a service connection. Buchanan, 451 F.3d at 1334-37. Here are the criteria for determining that.
- It must determine if the lay evidence is competent and provides an adequate explanation of determination (Jandreau v. Nicholson, 492 F.3d 1372 Fed. Cir. 2007)
- It must weigh the lay evidence against other evidence to make a determination of its value on the claim (Buchanan v. Nicholson, 451 F.3d 1331, 1334-1337 Fed. Cir. 2006)
- It must make a credibility determination as to whether the evidence supports a finding of service connection and a continuity of symptomology (Barr v. Nicholson, 21. Vet App. 303 2007)
Submit Your Own Medical Opinion from a Competent Licensed Health Provider
If a medical opinion is needed to support the claim, you can go about obtaining your own medical opinion from a competent licensed health provider in two ways. The first is to submit it with the initial claim. Theoretically, if it is an adequate opinion, VA should accept it at face value and make a decision based on that opinion.
Unfortunately, adjudicators have developed an adversarial approach to privately produced medical opinions. If a DBQ (Disability Benefits Questionnaire) is needed which with most compensation claims it is, then as part of that DBQ examination VA will usually order an opinion and disregard your opinion that has been submitted with the claim. The process of the Regional Office ordering its own medical opinion also occurs as we've pointed out when the medical record is too extensive. Adjudicators will find an excuse to order an opinion based on that record from a contract examiner to avoid examining the record themselves. Unfortunately, examiners do not look at the record either. They don't have enough time. Opinions from contract examiners typically lack detailed reasoning for the conclusion or fail to provide supporting citations from medical literature. As such they typically have no probative value for a fair decision.
Nevertheless, VSRs will accept an incompetent opinion from a paid examiner hired for this purpose regardless of its value. Even though a more adequate opinion may have been furnished by you, adjudicators usually ignore it and will never read it. Of course, in the decision letter that you receive based on the examination of the evidence, the adjudicator will always state that he or she has read all of your evidence which would include your own private medical opinion. If this were really true, then many of the claims that we have submitted should have been decided based on the more probative opinion. This typically has not been the case and so it is obvious that the VSR has ignored the more competent conclusion.
The second way for you to submit your own privately produced opinion is to allow the Regional Office to follow the procedure outlined above and allow the VSRs from VA to follow their predetermined course of ordering their own medical opinions. Examiners hired by VA to do DBQs and to offer medical opinions are only given a certain amount of time for the examination. In many cases this might only be 30 minutes and most of that time would be consumed filling out the DBQ or DBQ's. The examiner has little time for anything else.
When writing an opinion, the examiner is supposed to review the claimant's record in his or her eFolder. In fact, the contract examiner is required to state on the form furnished from VA whether he or she has reviewed the record. A review is not mandatory; on the other hand, is by Doctor how can the examiner come to a competent conclusion without understanding the history of the claim? Examiners almost always check the box that they have reviewed the medical record, but in most cases, due to time constraints, they have not. Without any knowledge of the underlying medical issues, an examiner will often issue an opinion for service connection based primarily on his or her gut feelings or how he or she relates to the claimant.
The majority of these examiners are physicians assistants or nurse practitioners who generally have no specialized training in the particular medical condition for which they are offering an opinion. To date, we have not seen any opinion from a VA contract examiner where the conclusion was based on a well reasoned discussion of the issues due to the examiner's own experience or on citations from medical literature to back up that reasoning. As a general rule these conclusions reflect a lack of professionalism and in most cases the conclusion is a simple statement of whether there is service connection or not without a detailed explanation for that conclusion.
Inadequate Verses Adequate Medical Opinions
The correct term for an opinion that is not suitable is called an "Inadequate opinion." An opinion that has credibility, is well reasoned, provides medical literature evidence, is based on a review of the claimant's medical record and is preferably from a specialist in the area of the medical condition being addressed is an "adequate opinion."
You should always attempt to obtain an "adequate opinion." If you use this strategy and produce a significantly more probative opinion on your own, you should win the battle with VA. As we have discussed, it is best to let VA order their own opinion first. In this way if you get an unfavorable decision, which happens frequently, you can now submit your privately produced opinion as new evidence and this process forces the adjudicators in the Regional Office into actually reading your new evidence. Letting the Regional Office go first also allows your opinion maker to discredit the often unprofessional opinion provided by the VA examiner.
Based on court rulings, an inadequate medical opinion has little or no probative value for making a determination for service connection unless it is the only opinion available. That's the problem. VA considers opinions from its contracted examiners to be the only opinions available and even though other privately obtained opinions are in the file adjudicators will ignore those other opinions.
Court rulings have established a standard for determining whether an opinion is adequate or inadequate. Here are the principles. If any of these principles is violated, the opinion can be considered inadequate.
- examiners need to consider lay statements describing relevant symptoms
- examiners need to provide clear conclusions with supporting data and a reasoned medical explanation concerning the service connection
- medical examiners may not decide the veracity of non-medical facts
- a medical opinion is inadequate if it is based on inaccurate factual premises
- a medical opinion is inadequate if the examiner can't reach a conclusion
- examiners can't use an evidentiary standard greater than the reasonable doubt principle
- examiners need to address all legal theories of entitlement to service connection
It is highly unfortunate that contract examiners who provide medical opinions apparently are not aware of the rules above. We have seen a great many inadequate opinions ordered by the Regional Office which in many cases are unfavorable to service connection. Any claimant who relies on VA for a medical opinion and does not his or her own private opinion is at high risk for receiving a denial.
When you do challenge a contract examiner opinion, it is critical that you provide in writing, on a VA Form 21-4138, the reason that that opinion is inadequate. Or you can include this challenge in your privately produced opinion. Your failure to challenge the VA opinion based on the elements above, will likely not allow you to prevail. It is essential that you point out the flaws – if there are any – in the VA opinion. If you cannot do this then you don't have a good case and you might want to give up your claim altogether.
Court Precedent Rulings on Adequate Medical Opinions
A medical opinion is adequate "where it is based on consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)).
The opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Id. at 124. In order to fully inform the Board's decision, an opinion must "contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008).
An examination that merely lists facts and conclusions with no reasoned explanation connecting the two therefore lacks probative weight. Id (above)
The Difficulty of Obtaining an "Adequate" Private Opinion
When seeking your own opinions, it is often difficult to find a physician, nurse or other medical professional who will provide a strong opinion without being paid for it. Also, the strategy of letting VA go first may take much longer for winning your case and if the contract examiner's opinion results in a denial, you will have to submit your new opinion as new evidence and reopen the case for reconsideration. But usually coming in after VA is the best way to win.
Even if they agree to providing an opinion, it is difficult to get a probative and well written statement from your private treating physician, PA, nurse or nurse practitioner. They don't know how to write them to be persuasive and probative and if they do, it takes too much time for them to do it without being paid. Don't be surprised if you get get a lot of refusals for this service from your health care providers.
In some cases, where there is a medical consult with the doctor who is treating you, you can persuade your doctor to include language in his or her summary of that consult that could constitute a medical opinion. For example, you could suggest to your provider that he or she state for you the following in the record, "it is at least as likely as not that Mr. Jones' osteoarthritis in his right knee is a result of an injury incurred in active duty service that he has described to me." This might represent an adequate opinion if the doctor elaborates on why he or she feels this way. You can then order a copy of your medical history which includes this consult and submit it as an opinion. This is not a particularly effective way to produce what we would call an "adequate opinion," but it might be enough to influence the adjudicator in the regional office to make a favorable decision for you.
One solution to getting cooperation from your treating physician is to research and write the opinion for your medical professional to review and sign. Sometimes this works and sometimes it doesn't. If you use this approach, you will almost always work with your practitioner's nurse who will review it for the provider, revise as necessary and then recommend that the practitioner sign it.
If your private provider will not produce such a document or if you cannot on your own, research and write a convincing opinion for your provider to sign, you will have to pay an an outside medical professional to provide an opinion for you. There are a number of these people nationwide who provide this service. If you believe strongly in your claim, you are going to have to fork over a substantial sum of money to get a probative medical opinion for your claim.
The Challenge with a "Development to Deny"
Don't be surprised by the conflict the interests we have discussed above. This process of fighting VA with medical opinions is totally adversarial and sometimes there is really little difference between what you are accomplishing with the adjudicator in the Regional Office and what you have to do to make your case in the traditional court system. The VA adjudication system is not supposed to work that way. According to the regulations the adjudication process is deliberately non-adversarial. Sometimes Veteran Service Representatives get carried away and think that they are acting as judges, which they are not. Their only requirement is to balance evidence on a scale and determine by the Preponderance Rule which way the evidence points. VA wants you believe the rating team is your advocate, but when it comes to medical opinions that's not always the case.
We have discussed above the possibility of a conflict when you are the first to provide the nexus opinion. Even though he or she may have an adequate opinion in the file, the VSR in the regional office will order his or her own nexus opinion. Regulations don't specifically prohibit the practice, but it is inconsistent with VA's duty to assist as an advocate to the veteran. Unfortunately, it happens a lot. In fact, it happens so frequently that accredited attorneys and accredited claims agents have a name for it. They call it "Development to Deny."
The Elements of a Fully Developed Claim for Pension
Application for Pension
VBA Form 21P-527EZ – This is the application a married or single veteran will use to apply for Veterans Pension – with or without the aid and attendance or housebound allowance. The veteran is always the claimant if he or she is alive even if the veteran is claiming expenses from the spouse's care.
It is especially important to remember the marriage and income sections must be filled out completely. Complete marriage information includes month and year dates, city state and county locations , full names, and the type of marriage. Basically, no information can be missing and partial answers are not tolerated. If you are not absolutely thorough with this form, Pension Management will return it to you to be completed accurately and you will have lost 30 - 60 days in processing time.
Application for DIC, Death Pension, and/or Accrued Benefits
VBA Form 21-534EZ is the application a surviving spouse will use to apply for Survivor's (Death) Pension with or without the aid and attendance or housebound allowance. You must fill out every applicable section of the 534EZ. Sections that don't apply do not have to be completed. If you leave questions unanswered, VA will send a development letter asking for explanations. It is especially important to remember the marriage and income sections must be filled out completely.
Appointment of Individual as Claimant's Representative
VBA Form 21-22a allows an individual to act as a claimant's representative. We have already discussed in detail in a previous section above that the staff at the Senior Veterans Service Alliance would be your most effective advocate for a Pension application.
Exam for Housebound Status or Permanent Need for Regular Aid and Attendance
VBA Form 21-2680 is essential for earning a rating for aid and attendance or housebound. With a rating, a claimant can qualify for improved Pension rather than just basic Pension. For example, basic Pension will pay up to only $1,146 per month for a single veteran. If that same veteran can earn a rating for aid and attendance, the veteran is eligible for up to $1911 a month from improved Pension.
The signing physician must understand the form is for a disability rating particularly directed towards activities of daily living. In short, VA is looking for language that justifies custodial care needs and highlights specific activities of daily living (ADLs) like bathing, walking, dressing, toileting, hygiene, feeding, protected environment, etc… Statements like "patient requires assistance with bathing and dressing" are far more convincing then vague statements like "poor motor skills and general weakness due to age."
The basic criteria VA follows to determine if a claimant requires the regular aid and attendance of another person or is permanently bedridden can be found in 38 CFR § 3.352.
Request for Nursing Home Information in Connection with Claim for Aid and Attendance
If the veteran is a permanent patient in a skilled nursing home, a rating for aid and attendance is automatic. VBA Form 21-0779 is a form the nursing home fills out to verify the applicant is a patient. As long as #13 is marked "Skilled Nursing Care" there is no need for the doctor's exam, made on Form 21-2680, nor for any caregiver to certify that the caregiver is providing custodial care. This form takes the place of that evidence. VA may ask for additional evidence if #13 is marked "Intermediate Nursing Care." This form is not applicable where the spouse of a living veteran is the one who is receiving care.
Income and Asset Statement
The new application for Veterans Pension on VA Form 21-527EZ includes the new questions concerning assets. The new application for Survivors Pension on VA Form 21-534EZ also contains the same questions although they are numbered differently. Any questions that are answered "yes" on this portion of the 527EZ from question 29A through question 29E requires filling out the new VA Form 21-0969. Likewise any questions that are answered "yes" on this portion of the 534EZ from question 43A through question 43D also requires Form 21-0969.
Care Provider Certification of Services
A statement from the care provider is very important. Even though the doctor is required to produce medical evidence for the claimant to meet the criteria for aid and attendance or housebound outlined above, without evidence the claimant is receiving and paying for these services there is likely no benefit. This general-purpose form covers all types of care services from facilities to family members providing care. The form must be completed accurately, backspace and the proper sections are filled out and the need for two or more activities of daily living must be checked off. It must be signed by the provider. VA will likely reach out to the care provider to verify what is reported here.
You may be seeking to deduct unreimbursed medical expenses (UMEs) from the claimant's household income. This form will provide further evidence of these expenses, which are likely the claimant's biggest expense. After you submit the application, if the costs you report on this form change or if the claimant moves, notify VA immediately.
Independent Living Community Certification of Services
A statement must be completed by an administrator of the community if the veteran or surviving spouse resides in Independent Living. Remember, Independent Living room and board costs alone are not considered to be unreimbursed medical expenses (UMEs). Housing, meals, room maintenance, emergency pull cords, 24-hour staffing, and locked exterior doors are not medical or nursing services (custodial care) by themselves.
VA will deduct Independent Living room and board when, due to poor health, the veteran or unhealthy spouse hires additional 3rd party care to meet their care needs AND the doctor certifies this arrangement.
For all claims involving Independent Living, include an care provider statement completed by the contracted 3rd party care and a letter from the doctor, signed, with this specific language:
"I, the signing medical practitioner, certify that ______________________ (claimant) must reside in ___________________________ (the Independent Living Community) to receive _______________________'s (the Contracted 3rd Party Care Provider) assistance with their Activities of Daily Living (ADLs) and custodial care needs. I prescribe the care outlined in the application that the 3rd Party Care Provider will offer the claimant in that facility."
If ALL of the above criteria are met, VA will deduct the room and meal costs and the 3rd party care costs. If not, VA will only deduct the 3rd party care costs. If there is no apparent need for third party care, do not bother making application for pension if residing in independent living.
Cover Letter for Submission
It is a good idea to create a cover letter to organize all of the claim's forms and supporting evidence and to identify the claim as fully developed for the veteran service representatives who will adjudicate the claim.
Other Necessary Forms
Other possible necessary documentation might include supporting documents like:
- a marriage certificate,
- a death certificate with a cause of death shown (VA must be able to clearly read the cause of death. Adjudicators are required to look for instances of suspicious death, homicide, and whether or not the death was service connected). Adjudicators will also check to see if the veteran was married at the time of death.
- name change records,
- recently paid receipts/invoices from care providers
- a current bank statement, social security statement, insurance statement, asset statement(s), or supplemental insurance statement.
Submitting an "Intent to File"
Before applying for benefits, a veteran claimant or a surviving spouse claimant may wish to establish an Effective Date by submitting an "Intent to File" on VBA Form 21-0966. Formerly known as an "Informal Claim" An "Intent to File" can be submitted in three different ways (see 38 CFR 3.155).
Using an "Intent to File" to establish an effective date before the claimant has sufficiently prepared his or her application will allow the claimant to receive a larger lump sum retroactive payment than he or she otherwise would have.
For Pension and Survivor Pension claims with the aid and attendance allowance, if the applicant
- meets the medical requirement for a rating,
- is receiving aid and attendance services,
- can demonstrate having paid at least one month's worth of unfavorable services,
- in addition meets the war service test,
- meets the Net Worth limit (asset test) and
- meets the income test,
you should submit an "Intent to File" as soon as possible. This will establish an effective date.
If you do not meet all of the criteria for an "Intent to File" above, ABSOLUTELY DO NOT FILE. It will mess up the process and create delays and confusion on the part of the service representatives or worse, cause ineligibility.
The Services of the Senior Veterans Service Alliance
The Senior Veterans Service Alliance was organized in 2011 to educate veterans and their survivors on all benefits that are available to them. Our website contains a vast amount of information about these benefits. The website is a popular destination for individuals across the country who are searching for information and assistance with veterans benefits.
Accredited representatives who provide their services to our nonprofit organization, have years of experience with submitting successful fully developed claims for Compensation, Pension and DIC. Our representatives also stand ready to help any applicants who have received denials or have received decisions less favorable than they anticipated to represent those claimants against VA and hopefully turn around those unwanted decisions. If it is a valid claim, we have been successful in most cases in winning challenges and getting the benefits that were desired.
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