SOTS OCTOBER 21-23, 2009

IDENTIFYING AND PREPARING READY-TO-

RATE CLAIMS

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.

Valid Claim Medical/lay evidence sufficient to

support contentions

Status

Income (if applicable)

Triage

Pre-Determination

Rating

Post Determination

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

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

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

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.

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.

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.

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.

REOPENED CLAIM

New and material evidence is required to “reopen” a claim. (38 CFR 3.156)

What is new and material evidence?

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.

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.

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>>>>>>>

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

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.

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

Notice to claimant Obtain “Federal” records Obtain non-federal records (with

certain restrictions) Request exam or opinion

Submit substantially complete application

Provide release for VA to obtain private records

No complete application No legal standing Claim is inherently not credible Claimant fails to cooperate Claimant fails to notify VA of

relevant records

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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

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.

Proof of service

Continuity

Request service medical records from veteran 

VA medical center records 

Medical evidence from private provider  

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

PTSD

Agent Orange

Unemployability - Employment information (employer) 

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 

Application must contain sufficient information for VA to verify claimed service

Minimum service requirements – 38 CFR 3.12a

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…

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!!!

At Reserve Center if active. Get name and address. Request claimant’s assistance.

At discharge from Reserves, SMRs eventually go to NPRC or RMC.

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.

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.

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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

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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.

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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.

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.

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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))

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.

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

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.

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 must attempt to obtain records held by other Federal agencies.

HOWEVER, these must be identified

with the claim

THE END

ANY

QUESTIONS