New ABA initiative - American Bar Association

• New ABA initiative: www.ABAVCAN.org

• In partnership with the U.S. Department of Veterans Affairs (VA), the ABA is providing attorneys with the opportunity to volunteer to help veterans complete pending disability claims to get expedited VA review.

http://www.abavcan.org/

What is ABA VCAN?

• ABA recently launched this pilot program, which focuses on pending claims in VA Regional Offices in Chicago, IL and St. Petersburg, FL.

• VA is selecting eligible veterans by focusing on unrepresented veterans who are in, or at risk of falling into, the VA's claims backlog.

• Not only will individual veterans receive help, but support provided by VCAN's volunteers will supplement the overall delivery of VA services to veterans.

How can attorneys get involved?

• Complete 4 steps:

1. Register with VCAN on www.ABAVCAN.org

2. Apply for and receive VA accreditation

3. Complete the required free ABA VCAN CLE

4. Read, sign, and submit to VCAN the ABA VCAN Volunteer Attorney Accreditation, Training, and Readiness Pledge Form


What can volunteers expect?• VCAN will contact you by email with:

o A case opportunity to help a specific veteran;o Basic case information and conflict check;o Necessary POA forms and representation agreement; ando The veteran’s VA file electronically.

• Timeline and responsibilities:o 60 days to develop and submit claim for VA’s expedited review. o Continue development after 60 days if needed.o Provide all documents and evidence to VCAN to submit to VA.o Representation through VCAN ends when VA makes an initial

rating decision, but you may continue representation.

• You have access to expert guidance from the VCAN staff attorney.

• Questions?

o www.ABAVCAN.org

o Email: [email protected]

o Mary Meixner, Project Director, 312-988-5783 and [email protected]


mailto:[email protected]

mailto:[email protected]

Veterans Benefits Training CLE

• Yelena Duterte▫ [email protected]

• Sean Ryan▫ [email protected]

312-360-2656

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Presentation Topics• Overview of the Department of Veterans Affairs• Basic Eligibility Requirements and Initial Considerations• Service-Connected Disability Benefits• Establishing Disability Percentage Ratings• Non-Service Connected Pension• Effective Dates for Award of Benefits• Survivor Benefits• Application for Benefits and Initial Administrative Appeal• Board of Veterans Appeals• Court of Appeals for Veterans Claims

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Veterans Benefits Manual

Veterans Benefits Manual (Barton F. Stichman & Ronald B. Abrams eds., National Veterans Legal Services Program) (2013)

If you would like to purchase a manual:http://www.nvlsp.org/Publications/Bookstore/Manuals/vetbenefitmanual.htm

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Overview of the Department of Veterans Affairs

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DEPARTMENT OVERVIEW

A. Federal Mission and Goals

The Department of Veterans Affairs (VA), was established as an independent agency under the President by Executive Order 5398 on July 21, 1930, was elevated to Cabinet level on March 15, 1989.

The Department's mission is to serve America's veterans and their families with dignity and compassion and to be their principal advocate in ensuring that they receive medical care, benefits, social support, and lasting memorials promoting the health, welfare, and dignity of all veterans in recognition of their service to this Nation.

Office of Human Resources and Administration, Department of Veterans Affairs: 2010 Organizational Briefing Book 1, http://www.va.gov/ofcadmin/docs/vaorgbb.pdf (August 2011).

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DEPARTMENT OVERVIEW

B. Federal Statistics

• The VA is the second largest Federal Department, with over 327,000 employees.

• The VA budget has $63.5 billion in discretionary funding.

• VA is comprised of a Central Office (VACO), which is located in Washington, DC, and field facilities throughout the Nation administered by its three major line organizations: 1. Veterans Health Administration (VHA), 2. Veterans Benefits Administration (VBA), and 3. National Cemetery Administration (NCA).

Fiscal Year 2015 Budget of The U.S. Government 2013 VA Performance and Accountability Report Summary of Performance and Financial Information

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VA STRUCTURE & OFFICERS

A. Office of the General Counsel

• The Office of General Counsel (OGC) assists in the formulation of policy and provides legal advice and services to the Secretary and all organizational components in the Department.

• The General Counsel of the Department of Veterans Affairs issues written legal opinions having precedential effect in adjudications and appeals involving veterans' benefits under laws administered by VA.

www.va.gov/OGC/

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Benefits Claims Hierarchy

Supreme Court

US Court of Appeals for the Federal Circuit

US Court of Appeals for Veteran Claims

Board of Veteran Appeals

Regional Office

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Basic Eligibility Requirements & Initial Considerations

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DEFINITION OF A VETERAN

A. Who Is a Veteran?

• “ A person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.” 38 U.S.C.S. § 101(2); 38 C.F.R. § 3.1(d) (2013).

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ACTIVE SERVICE REQUIREMENTS

A. “Military, Naval, Or Air Service”• Conventional military service in one of the five branches of the U.S.

Armed Forces• Also includes service as member of Reserves or National Guard

(subject to additional requirements)

B. What Does Active Service Include?1. Active Duty in one of the five branches of the U.S. Armed Forces.2. Training, when injury incurred or was aggravated.3. Reservist called to active duty.4. National Guard member when called to serve on federal active duty

under Title 10.

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ELIGIBILITY & CHARCTER OF DISCHARGE

A. Character Of Discharge• In order to satisfy the definition of a veteran, that individual must

have been discharged or released from military service “under conditions other than dishonorable.” 38 C.F.R. § 3.12(a) (2013)

B. Types Of Discharge1. Honorable discharge (“HD”);2. Discharge under honorable conditions (“UHC”), or general discharge

(“GD”);3. Discharge under other than honorable conditions (“OTH”), or

undesirable discharge (“UD”);4. Bad conduct discharge (“BCD”);5. Dishonorable discharge (“DD”) or a dismissal, the later in the case of

an officer.

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C. Which Discharges Meet The Eligibility Requirements?

1. HD & UHC meet the eligibility requirement.2. DD disqualify a veteran for benefits.3. BCD & OTH may or may not make a claimant ineligible.4. Discharge Upgrades.

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WILLFUL MISCONDUCT

A. What Is Willful Misconduct?An act involving conscious wrongdoing or known prohibited

action. It involves a deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. 38 C.F.R. § 3.1(n); 38 C.F.R. § 3.1(n)(1) (2013) .

B. ImpactAn injury or disease that was the direct result of willful

misconduct is not compensable. 38 USCS 1521(a); 38 C.F.R. § 3.301(b) 2013.

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C. Examples Of What Is And Is Not Considered Willful Misconduct

1. Alcohol is willful misconduct. 38 C.F.R. § 3.301(c)(2) (2013).2. Drug abuse is willful misconduct. 38 C.F.R. § 3.301(d) (2013).3. Residuals of venereal disease is not willful misconduct. 38 C.F.R. §

3.301(c)(1) (2013).4. Suicide is not considered willful misconduct, so long as the deceased

veteran was of unsound mind at the time of suicide. 38 C.F. R. § 3.302 (a) – (b) (2013).

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Establishing Service Connected Disability Benefits

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COMPENSATION OVERVIEW

Important Definitions:“Service Connected” • For the VA to find a disability or death to be service connected, it

must determined that the disability or death was incurred or aggravated during active service in line of duty, or that the death resulted from a disability that was incurred or aggravated in line of duty during active military service. ▫ 38 U.S.C.S. § 101(16).

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COMPENSATION REQUIREMENTS

A. Basic Prima Facie Case

A veteran seeking service connected disability compensation must satisfy three fundamental requirements before the VA will grant compensation benefits.

1. There must be competent evidence of a current disability. 2. There must be medical, or in certain circumstances, lay evidence of in-

service occurrence or aggravation of a disease or injury. 3. There must be competent evidence of a link or nexus between the in-

service occurrence or aggravation of a disease or injury and the current disability.

7 Vet.App. At 506

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STATUTORY EVIDENTIARY STANDARD

• The standard of proof that a claimant must satisfy for an award of benefits is commonly called the “benefit of the doubt” standard.

• “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.” 38 U.S.C. 5107(b).

• This applies to all elements of service connection.

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B. Evidence Of Current Disability

• The first requirement for a grant of service connected disability compensation is “competent evidence” that the veteran currently has a particular disability. 38 U.S.C. §§1110, 1131.

• Such as:▫ Letter or statement from a VA official or private physician;▫ Evidence in the veteran’s service medical and treatment

records; and/or▫ Evidence from medical textbooks, treatises or journals.

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B. Evidence Of Current Disability

• For a grant of disability compensation, the VA requires evidence that the veteran had a "presently existing disability" on the date that the veteran filed the claim for compensation benefits or at another point thereafter. ▫ 155 F.3d 1353, 1355 (Fed. Cir. 1998)

• Evidence that a veteran had a service-related disability at some point in the past does not satisfy this requirement.

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The second requirement for service connected disability compensation is “medical, or in certain circumstances, lay evidence of in service occurrence or aggravation of a disease or injury.”

The disease, injury, or event does not have to be directly related to military duties as long as it happened between the day the veteran entered service and the day the veteran was discharged.

C. Evidence Of An In-service Occurrence Or Aggravation


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• Lay evidence may be considered and will be sufficient evidence when the issue relates to an observable event.

• If circumstances raise a medical issue in the case, medical evidence is required.

• Types of lay evidence include:▫ Veterans own statements describing the injury/event;▫ “Buddy statements”;▫ Newspaper articles; and/or▫ Letters to/from family and friends.



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Combat Veterans• This special treatment for combat veterans is mainly

contained in two provisions: ▫ 38 U.S.C.S. 1154(b) ▫ 38 C.F.R. 3.304(d) and (f)

• 38 USCS 1154(b) requires the VA to accept a veteran’s lay statement about what happened in service if the event:1. Occurred while the veteran was “engaged in combat with the

enemy”;2. Is “consistent with the circumstances, conditions or hardships” of

such service; and3. There exists no “clear and convincing evidence to the contrary.”



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D. Nexus Between In-service And Current Disability

• Medical Evidence to Satisfy the Nexus Requirement▫ A claimant will satisfy the requirement of competent nexus

evidence by obtaining a letter or statement from a private physician or VA physician that expressly connects the veteran’s disability or death to the occurrence or aggravation of a disease or injury in service or to an event in service

• *Disability must be “as likely as not” connected to service.

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Nexus - Five Legal Theories

1. Direct Service Connection. 2. Aggravation. 3. Presumptive Service Connection. 4. Secondary Service Connection. 5. VA Malpractice (Section 1151

Claim)

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1. Direct Service Connection

• The phrase “direct service connection” is generally used to mean that a disease, injury, or event during a veteran's active military service directly caused a current disability.



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1. Direct Service Connection: Delayed Connection

• Veterans may obtain direct service connection for diseases that are first diagnosed long after the end of their active duty service.

• “Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.” ▫ 38 C.F.R. §3.303(d) .



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2. Aggravation

• Compensation, however, may also be paid for disability caused by the aggravation due to service of an injury or disease that existed prior to service.▫ 38 U.S.C. § 1110, 1131 (2013).

• A key issue is whether the condition was noted when the veteran was examined, accepted and enrolled for service.

• If the condition was not noted, then the presumption of soundness applies.▫ 38 U.S.C.S. § 1111 (2013).



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2. Aggravation

• The veteran does not have to prove that a particular incident during service caused the increase in disability; the veteran merely must show that the underlying disability worsened during the period of service.▫ Laposky v. Brown, 4 Vet. App. 331, 334 (1994).

• The increase in disability, however, must be more than a temporary worsening of symptoms or a flare-up. It must be a non-temporary increase in the severity of the underlying condition itself. ▫ Davis v. Principi, 276 F.3d 1341, 1346-47 (Fed. Cir. 2002).



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3. Presumptive Service Connection• The policy behind presumptive service connection is disease

that first manifested after service probably had its beginnings during service and, under the circumstances, veterans should not be required to obtain medical evidence of a connection to obtain benefits.

• It is available for: ▫ certain chronic diseases, ▫ tropical diseases, ▫ diseases specific as to former prisoners of war, ▫ diseases specific as to radiation-exposed veterans, ▫ diseases associated with exposure to certain herbicide agents

such as Agent Orange, ▫ diseases associated with exposure to mustard gas and

Lewisite, and ▫ certain diagnosed and undiagnosed illnesses in veterans of the

Gulf War.



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4. Secondary Service Connection• A disability which is proximately due to or the result of a

service-connected disease or injury shall be service connected.

▫ 38 C.F.R. § 3.310



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5. Injury Caused by VA Medical Treatment or Vocational Rehab (Section 1151)

• Disability caused by VA medical care or vocational rehabilitation my be treated “as if” it is connected to service.

• 38 U.S.C. § 1151 requires fault, negligence, lack of proper skill, carelessness, error in judgment or accident by VA.

• If negligence is a factor, the veteran can file a claim under the Federal Tort Claims Act.▫ Both avenues may be pursued simultaneously.



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Post-Traumatic Stress Disorder (“PTSD”)

• Requirements:▫ 1) Diagnosis of PTSD ▫ 2) Credible supporting evidence of an in-service

stressor ▫ 3) Link between the diagnosis and the stressor

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PTSD

• Exceptions to the need of “credible evidence” to corroborate a stressor▫ In-service diagnosis▫ Combat veterans with combat related stressors▫ Stressor is related to “fear of hostile military or

terrorist activity”▫ Personal assault

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PTSD

Fear of Hostile Military or Terrorist Activity▫ “Veteran experienced, witnessed, or was confronted with an event or

circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as form an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.” 38 C.F.R. s 3.304(f)(3)

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PTSD

Fear of Hostile Military or Terrorist Activity▫ Veteran’s own lay statement will qualify▫ Nexus must be provided by VA medical professional▫ Veteran’s service can be during any time period and in

any location▫ Applies to claims filed or pending on or after July 13,

2010

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PTSD

Personal Assault▫ VA allows alternative evidence to support the

occurrence of the stressor Independent medical evidence Statements from family members or others about

behavior changes during the relevant time period In-service records of behavior changes

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Establishing Disability Percentage Rating

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Rating Schedule

A. Introduction Once service connection is established, the VA assigns the

appropriate disability rating based on impairment of earning capacity in civil occupations.

Each disability relates to a series of diagnoses, each with a numerical diagnostic code.

The degree of disability increases as the severity of the symptomatology becomes greater which will lead to a higher disability percentage rating.

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B. VA Procedure• When evaluating a disability, the rating team examines the

veteran’s medical records to ascertain the medical diagnosis for the particular disability.

• The team finds the appropriate diagnostic code for the disability and selects the degree of disability that corresponds with the symptomatology of the veteran’s condition.

• Degree of disability is based on a system of percentages in multiples of 10.

Rating Schedule

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SINGLE FINGER AMPUTATIONSMajor/Minor

5152 Thumb, amputation of:With metacarpal resection...................................................... 40 / 30 At metacarpophalangeal joint or through proximal phalanx.................................................................................... 30 / 20 At distal joint or through distal phalanx.................................... 20 / 20

5153 Index finger, amputation ofWith metacarpal resection (more than one-half the bone lost)………………………………………….................................... 30 / 20 Without metacarpal resection, at proximal interphalangealjoint or proximal thereto.......................................................... 20 / 20Through middle phalanx or at distal joint……………………. 10 / 10

5154 Long finger, amputation of: With metacarpal resection (more than one-half the bone lost)............................................................................................ 20 / 20 Without metacarpal resection, at proximal interphalangealjoint or proximal thereto........................................................... 10 / 10

38 CFR 4.71a (2010).

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Additional Example

8100 Migraine:

With very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability 50

With characteristic prostrating attacks occurring on an average once a month over last several months 30

With characteristic prostrating attacks averaging one in 2 months over last several months 10

With less frequent attacks 0

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VA Math

Direct Calculations of Multiple Disabilities

Veteran has following ratings: 70%, 30%, 10% This does not mean the Veteran has a 110% disability

rating. Instead: 1st Rating + ((100%- 1st Rating) x 2nd Rating)=

Combined Rating 70% + (30% x 30%) = 79% 79% + (21% x 10%)= 81.2 %

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Disability Percentages

Levels of Payment

The following are examples of the payments corresponding to levels of disability

10% Rating = $130.94/month 50% Rating = $822.15/month (no dependents) 100% Rating = $ 2,858.24/month (no dependents)

Disability compensation is not taxable and (generally) is not subject to garnishment.

38 U.S.C. § 5301(a)(1) (2003).

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Analogous Ratings, 38 C.F.R. § 4.20 (2010).

Not all disabilities are in the Rating Schedule. When the rating team encounters an unlisted condition, the condition is rated under a closely related, or analogous, injury.

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Example of Analogous Ratings5256 Knee, ankylosis of:

Extremely unfavorable, in flexion at an angle of 45° or more 60In flexion between 20° and 45° 50In flexion between 10° and 20° 40Favorable angle in full extension, or in slight flexion between 0° and 10° 30

5257 Knee, other impairment of:

Recurrent subluxation or lateral instability:Severe 30Moderate 20Slight 10

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Rule Against Pyramiding, 38 C.F.R. § 4.14 (2010).

Anti-pyramiding: Prohibition against compensating a veteran more than once for the same disability or manifestation.

To be compensated for two separate ratings resulting from a single injury or disease, veteran must establish that the codes in issue are not duplicative and do not contain overlapping symptomatology.

When there is a question as to which of two evaluations the VA should assign, the VA is required to assign the higher percentage of the two evaluations.

38 C.F.R. § 4.7(2010)

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Total Disability Based on Individual Unemployability (TDIU)

1. The veteran cannot be engaged in and must be unable to engage in a substantially gainful occupation, AND

2. The veteran should have:a) One service connected disability rated above 60%,

ORb) Two or more service connected disabilities, one of

which is at least 40% and sufficient additional service connected disabilities to bring it up to a combined rating of 70%.

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Substantially Gainful Occupation (SGO) CAVC held that a SGO is one that provides annual

income that exceeds the federal poverty guidelines for one person. Faust v. West, 13 Vet.App. 342, 356 (2000).

Currently this is $11,170 for one person.

Total Disability Based on Individual Unemployability (TDIU)

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VA Discretion to Reduce or Increase a Disability Percentage

The VA, in its discretion, may choose to reevaluate a service connected condition and change the disability rating.

– 38 C.F.R. § 3.327(a)(2010).

VA can reexamine at any time but reexaminations are generally ordered if evidence indicates a material change in disability since the last evaluation

– Usually done 2-5 years within the last evaluation.

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Special Monthly Compensation

Above the percentages, veterans may be eligible for additional compensation.

Examples:▫ Loss of a Creative Organ: $100/month▫ Housebound or Total Rating plus 60%: $3,152/month▫ Aid & Attendance: $3,504/month

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Non-Service Connected Pension Benefits

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Requirements

(1) wartime service that ultimately results in a discharge under other than dishonorable conditions,(2) permanent and total disability, and (3) demonstrated need. The VA determines need by calculating the income and net worth of the claimant.

Periods of War:

1. World War II: December 7, 1941 – December 31, 19462. Korean Conflict: June 27 1950 – January 31, 19553. Vietnam Era: August 5, 1964 – May 7, 1975.4. Persian Gulf War: August 2, 1990 – date to be

prescribed by Presidential proclamation.

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The Requirement of Permanent and Total Disability

• Veterans claiming entitlement to pension benefits must be permanently and totally disabled from non-service-connected conditions or a combination of non-service-connected and service-connected conditions. 38 U.S.C.S. § 1521(a); 38 C.F.R. § 3.342(a) (2008).

• Veterans are presumed to be permanently and totally disabled if:

• 65 years of age or older• A patient in a nursing home

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The Requirement of Need

Pension is a needs based program. Even if a veteran satisfies all of the other requirements, if the veteran's countable income exceeds the maximum annual pension rate (MAPR), a claim for improved pension will be denied.*

-MAPR for 2013: $12,652

In order to establish entitlement to improved pension, the VA considers the claimant's net worth as well as his or her income.

*The MAPR is adjusted to reflect changes in cost of living when social security benefits are adjusted to reflect changes in the cost of living.

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Exclusions and Deductions from Income for Improved Pension

Purposes

• Sources of income excluded or deducted from income for VA improved pension purposes include*:1.)Welfare2.)Fire insurance proceeds3.)Profit from sale of property4.)Funds in joint accounts acquired by death5.)Medical Expenses 6.)Interest accrued on retirement annuity accounts7.)Expenses of last illness and burials8.)Educational Expenses* 38 U.S.C.S. § 501(a); 38 C.F.R. § 3.272 (2010).

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The Formula Used to Calculate Improved Pension

• Simple Income Example:

If, for example, the annual income limit for a veteran, as set by Congress, is $10,000 and Veteran’s income is $7,000, your VA pension will be $3,000 ($10,000 -$7,000 = $3,000) paid in monthly installments.

$250/month

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The Formula Used to Calculate Improved Pension Deducting Medical Expenses

• A portion of your unreimbursed medical expenses (what you paid out of pocket after medical insurance pays) may reduceyour countable income. If your medical expenses for a year are $8,000 and your medical insurance pays $6,000 of that, your unreimbursed medical expense is $2,000.

• That portion of your unreimbursed medical expenses ($2,000 in the example above) which is more than 5% of the maximum rate of pension, or $500 in this example ($10,000 x .05 = $500), may be deducted from your total combined income which then increases the amount VA will pay to you.

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The Formula Used to Calculate Improved Pension Deducting Medical Expenses

Since the $2,000 out of pocket expenses is greater than $500, you may reduce your family income by $1,500 ($2,000 - $500). So, your income for VA pension purposes is now $5,500 ($7,000 - $1,500).

Your VA pension would then be $10,000 (maximum rate for a veteran) minus $5,500 (total family income after deducting unreimbursed medical expenses), or $4,500for that year.

$375/month

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Special Monthly Pension (SMP)

Special Monthly Pension (SMP) is awarded for disability levels exceeding permanent and total disability. There are two types of SMP:

1.) Housebound benefits (HB). These benefits are awarded when the VA determines that a veteran who has already been determined to be disabled, is now also permanently housebound (essentially confined to his or her home). $15,462 (without dependents)

2.) Aid & Attendance (A&A). If the VA determines that a veteran, who has established entitlement to pension, needs the regular aid and attendance of another person. $21,107 (without dependents)

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Changes in Income

• The VA no longer requires pension applicants and recipients to file annual reports detailing their previous year's income (as well as that of their spouses and dependent children) and estimating anticipated income for the current year. 38 C.F.R. §§ 3.256, 3.277 (2010).

• However, the VA does require an recipient of pension to report any changes in income or dependency status.

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Failing to Report Income

• If a veteran fails to report income or underreports income to the VA, a debt may be created. This debt is usually referred to as an overpayment.

• An overpayment may occur when a veteran gets divorced and then forgets to inform the VA of the dissolution.

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If VA Determines there is an Overpayment

• Dispute Validity or Amount of Debt▫ No deadline for submitting this dispute▫ However, if it is done within 30 days collection will be

stayed

• Request a Waiver of Collection▫ Must be submitted within 180 days of notice▫ May not waive the debt, if there is any indication of fraud or

bad faith

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Effective Dates for Awards of Benefits

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General Rules for Effective DatesThe effective date for original and reopened claims is the

later date of which:

1. VA receives the claim; OR2. Date of entitlement to the benefit “arose.”

-38 U.S.C.S. 5110(a)

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Definitions of Claim1. “A formal or informal communication in writing requesting a

determination of entitlement or evidencing a belief in entitlement, to a benefit.” 38 CFR 3.1(p) (2008).

2. “Any communication or action, indicating an intent to apply for one or more benefits. . .from a claimant . . . May be considered an informal claim. Such informal claim must identify the benefit sought.” 38 CFR 3.155 (2010).

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Communications Qualifying as Claims

Seeking medical treatment at a VA medical center or a readjustment counseling center does NOT qualify as an informal claim.▫ KL v. Brown, 5 Vet. App. 205, 208 (1993); ▫ Dunson v. Brown, 4 Vet. App. 327, 329-30 (1993).

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Effective Dates

Claimant has 1 year to submit application from the date that VA furnishes a formal application form to claimant. ▫ VA Form 21-526▫ If Claimant does not file application within 1 year, the

effective date will be the date that VA received the completed application.

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Determining the Date Entitlement “Arose”

“Date entitlement arose” is the initial date on which it appears the claimant satisfied all of the substantive criteria for entitlement to the benefit.

This is determined from a review of all the evidence included in the record when the VA granted the claim.

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Date Entitlement “Arose” Example

• The date entitlement arose for a post traumatic stress disorder is the date the evidence in the record shows that the veteran first suffered from PTSD, which may be many years after discharge and after the traumatic events took place.

• PTSD: The date entitlement arose is generally the first medical diagnosis of PTSD unless a medical opinion states that the veteran suffered PTSD prior to the date of the first diagnosis.

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Special Rules Resulting in Earlier Effective DatesExceptions to general rule on effective dates• Claims based on Clear and Unmistakable Error (CUE)• Compensation claims received within 1 year of

discharge from military• Death compensation claims received within 1 year of

veteran’s death• Claims for an increase in disability rating received

within 1 year of the date the disability became worse. 38 U.S.C.S. § 5110 and 38 C.F.R. §§ 3.400- 3.404 (2011).

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Survivor Benefits

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Types of Survivor Benefits

• Accrued Benefits / Substitution• Dependency and Indemnity Compensation (DIC)• Death Pension

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Qualifying Family Relationships

• Surviving Spouse• Surviving Child• Dependent Parent

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“Surviving Spouse”

Person of the opposite sex who was the spouse of a veteran at the time of the veteran’s death, and who lived with the veteran continuously from the date of marriage to the date of veteran’s death. 38 U.S.C. 101(3)

Surviving Spouse MAY also have to prove one or more of the following:

1. Married at least one year prior to the veteran’s death.2. Continuous cohabitation with the veteran during the marriage; and3. No remarriage after the Veteran’s death.

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Surviving Child

• Biological, Adopted, or Stepchild • Unmarried• Qualifying Age▫ Under 18 years of age▫ Between 18-23 if pursuing course of education 38 U.S.C.S. § 104(A)

▫ Any age if found by a rating determination to have become, prior to age 18, permanently incapable of self-support 38 C.F.R. § 3.315(a) (2013)

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Dependent Parent

• These benefits are given only in limited circumstances.• Key eligibility requirements:

▫ Parental relationship to the veteran▫ Financial dependency of the parent Basic Rule: Dependency will be held to exist if the parent of

the veteran does not have an income sufficient to provide reasonable maintenance for such parent and members of his or her family under legal age. 38 C.F.R. 3.250 (b)

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Accrued Benefits

Benefits to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death and due and unpaid. 38 U.S.C.S. 5121

Applications for accrued benefits must be filed within one year after the date of death.

For deaths occurring on or after 12/16/2003, claimants are entitled to the entire amount of benefits that would have been paid had death not occurred. 38 C.F.R. 3.1000(a)(1)

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Substitution

If a claim for benefits is pending when the claimant dies and the claimant dies after October 9, 2008, a qualifying surviving family member can request to be substituted for the deceased claimant and continue to pursue the claim. 38 U.S.C.S. 5121A

Substitution vs. Accrued Benefits Accrued benefits claimant cannot submit any additional

evidence Time limits for filing are the same Both require that a claim be “pending”

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Pending Claim

• General Rule: A claim which has not been finally adjudicated. Where the appeal period has not yet expired, case is still pending. ▫ 38 C.F.R. § 3.160(c)▫ 38 C.F.R. § 3.160(d)

• Taylor v. Nicholson (2007)▫ CAVC: Claim was still pending at time of veteran’s death

because he had 1 year from the date of the RO decision to file a Notice of Disagreement (NOD) (May 9, 2007) No. 05-0625

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Non-negotiated Benefits

• Definition: When VA check for benefits is received by veteran but not negotiated (cashed or deposited) prior to the veteran’s death.

• Amount of uncashed check = non-negotiated benefit.• No time limit for filing a claim.

▫ 38 U.S.C.S. § 5122

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Dependency and Indemnity Compensation (DIC)

• Monthly VA benefits paid to eligible survivors of veterans who had▫ Service-connected disability that was the principal or contributory cause

of death; or▫ Service-connected disability that was totally disabling for a period of 10

or more years immediately preceding death; the disability was continuously rated totally disabling for a period of 5 years from the date of veteran’s discharge; or veteran was a former POW and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding veteran’s death. 38 U.S.C.S. § 1318

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Entitlement to DIC: Primary & Principal Causes of Death

Service connected disabilities are considered the “principal” or “primary” cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b).

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Entitlement to DIC

• DIC claims filed after January 21, 2000:▫ Veteran must have filed a claim for benefits while alive. ▫ If no claim was filed while the veteran was alive, there is no

possibility of DIC benefits for survivors. 38 C.F.R. 3.22(b)

▫ DIC intended to provide continued support to survivors who had become dependent on VA disability compensation during veteran’s lifetime.

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Dependency and Indemnity Compensation

• Surviving Spouse is first in line to receive benefits▫ VA will increase benefits to reflect surviving children▫ If there is no surviving spouse, a qualifying child is next in

line to receive DIC benefits. 38 U.S.C.S.§ 1313

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Filing for DIC

• No time limitation to file, But:▫ If claim is filed within 1 year of death and granted, retroactive

benefits will be awarded back to the 1st day of the month following Veteran’s death. 38 U.S.C.S. §§ 5111(a), 5110(d).

▫ Claims filed after 1 year of death, and granted, only receive benefits dating back to the 1st day of the month after the month in which the claim was received.

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Surviving Spouse DIC Payment Rates

Effective as of 12/1/2012:• Death on or after January 1, 1993:▫ Basic Monthly Rate = $1215▫ $301 per each additional dependent child under age 18

• Death before January 1, 1993▫ DIC based on highest pay grade attained by deceased veteran.▫ If this amount is less than the standard monthly base rate for

deaths on or after January 1, 1993, VA pays the standard monthly base amount.

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Surviving Child DIC Payment Rates

Surviving benefits only payable to surviving children where there is no surviving spouse. 38 U.S.C.S. § 1313(a)

Children paid in divided equal shares set by statute.

1 child: $ 513 - 5 children: $1,329 2 children: $ 738 - 6 children: $1,512 3 children: $ 963 - 7 children: $1,695 4 children: $1,146 - 8 children: $1,878

http://www.benefits.va.gov/COMPENSATION/resources_comp03.asp

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Death Pension

• A monthly VA benefit payable to an eligible surviving spouse of a veteran whose death was not service connected.

• The veteran must have qualified for pension benefits.▫ Death pension is based on the survivor’s financial need▫ The Maximum Annual Pension Rate for surviving spouse is $8,485.

▫ http://www.benefits.va.gov/pension/current_rates_survivor_pen.asp

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Application for Benefits & Initial Administrative Appeal

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SUBMITTING A BENEFITS CLAIM AT THE VARO

A. Overview of the VARO• An initial application for benefits is filed with the “Agency of

Original Jurisdiction,” or Regional Office (RO).

• There are 56 Regional Offices (RO or VARO) located around the country.

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SUBMITTING A BENEFITS CLAIM AT THE VAROA. Overview of the VARO

The VA is unique because in many federal agencies the substantive rules that govern the adjudication of a particular matter are the same for each level of appeal within the agency, but this is not the case at the VA. The VA does not follow a strict system of res judicata.

The VAROs are primarily bound by four sources: 1. The VA Adjudication Procedures Manual, Manual M21-1;2. Applicable statutes and case law;3. VA regulations; and 4. Precedent Opinions of the VA General Counsel.

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A. Overview of the VARO

There are three types of claims that can be filed at a VARO:

1. New or Original Claims 38 C.F.R. § 3.155(a);

2. Reopened Claims Filed After a Final VA Denial 38 C.F.R. § 3.151(a); and

3. Claims for Revision of a Previous Final RO Decision Based on Clear & Unmistakable Error. Criswell v. Nicholson, 20 Vet.App. 501 (2006).

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B. Types of Claims Filed at the VARO

1. New or Original Claims

Each different type of injury, disease or disability that is the subject of a request for benefits involves a new, different claim.

This type of claim primarily pertains to benefits never requested and increases in a disability ratings.

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B. Types of Claims Filed at the VARO

2. Reopened Claims Filed After a Final VA Denial

“Final denial” means the previous denial was unsuccessfully appealed to the highest level of appeal possible for that particular matter. Or the veteran missed an appeal deadline.

A “reopened claim” is a claim for a VA benefit that is filed after the VA issues a final denial of a claim requesting the same benefit. A reopened claim is subject to a threshold requirement that the claimant submits “new and material evidence.” 38 C.F.R. § 3.156(a). Kent v. Nicholson, 20 Vet.App. 1, 5 (2006).

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B. Types of Claims Filed at the VARO3. Claims for Revision of a Previous Final RO Decision based on Clear & Unmistakable Error (CUE)

• These claims are considered an original claim rather than a reopened one because the claim is being revised to conform to the true state of the facts or the law that existed at the time of the original jurisdiction. ▫ Russel v. Principi, 3 Vet.App. 310, 314-315 (1992).

• The VA regards this type of error very rare and specific where either the correct facts (as they were known at the time) were not before the RO, or the statutory and regulatory provisions existing at the time were incorrectly applied. ▫ Crippen v. Brown, 9 Vet.App. 412, 418 (1996).

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SUBMITTING A BENEFITS CLAIM AT THE VAROB. Types of Claims Filed at the VARO

The original adjudication process begins at the RO with one of the following types of claims:

1. Informal Claims, 38 C.F.R. § 3.155(a).2. Formal, 38 C.F.R. § 3.151(a).

1. VA Form 21-5263. Inferred

Claims not directly raised by the claimant but reasonably raised by the claimants record generally require evidence of a veteran’s intent to seek benefits.• Criswell v. Nicholson, 20 Vet.App. 501, 503-504 (2006).

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C. Duties Owed by the VARO

After reviewing the file the VARO has a duty to:1. Notify the claimant of the evidence/information

necessary to prove the claim;2. What information the claimant needs provide to prove its

claim; and3. What information the VA will attempt to obtain on its

own.38 U.S.C.S. 5103(a)

The VA must provide the notification upon receipt of a complete or substantially complete application, before the RO makes an initial adverse decision on the claim.

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Duties Owed by the VARO

- Duty to Consider All Legal Theories, 38 C.F.R. § 3.103(a).

• The VA is required to consider all legal theories on which the claim could be granted, regardless of whether the claimant argues or focuses on every theory.

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C. Duties Owed by the VARO

A. VA Assistance in Obtaining Records, 38 U.S.C. § 5103A(b).A. Reasonable efforts to obtain public and private records.B. If unable to find records, VA has to notify the claimant of

records needed to substantiate the claim.

B. VA Assistance in Providing a Medical Examination or Obtaining a Medical Opinion in a Disability Compensation Claim, 38 U.S.C. § 5103A(d).• VA must provide a medical examination or obtaining a

medical opinion when such an examination or opinion is necessary to make a decision on the claim

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Fully Developed Claim (FDC)

• FDCs had an average wait time of 117 days for a RO decision, rather than the 262 day average for claims filed outside of FDC.

• Certain criteria must be met for FDC:▫ Must be a new claim, secondary or increase in disability claim▫ Must have a signed FDC Certification signed▫ Must submit all relevant private medical records, and identify all

VA medical centers where treatment was sought.• Earlier Effective Date▫ Veterans who properly file under FDC from August 6, 2013 to

August 6, 2014, may receive an earlier effective date of a year earlier, without filing an informal claim to hold the effective date open

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Disability Benefits Questionnaire

• VA Forms addressing medical conditions that would eliminate the need for physicians to use a lengthy narrative.

• 70 different forms, each addressing different disabilities.

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VARO ADMINISTRATIVE APPEAL

Notice of Disagreement (NOD)Statement of the Case (SOC)De Novo Review by a Decision Review Officer (DRO)Substantive (Form 9) Appeal

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A. Notice of Disagreement (NOD)

The deadline to file an NOD is very important; it is within one year from the date of the mailing of the VA notice to the claims of the adverse decision. 38 C.F.R. § 20.302(a) .

The date on the letter notifying the claimant of the decision is considered the “date of mailing” of the notice. 38 C.F.R. § 20.302(a) .

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De Novo Review by a Decision Review Officer (DRO)

• A claimant who files an NOD may obtain de novo review of the initial decision, occurring between the filing of the NOD and the VA’s issuance of the statement of case.

• The claimant may initiate a de novo review by either requesting it in the NOD, or requesting it within 60 days after the VA sends notice of the right to the de novo review.

• A de novo review by a DRO suspends the traditional appeals process.

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Statement of the Case (SOC)

Upon receipt of the NOD, the RO must review the claims file and either grant or deny a claim. After reviewing the claims file, the RO will issue a Statement of the Case (SOC).

A SOC must contain:• Summary of the evidence,• Applicable law and regulations, and• Reasons for denying the claims with respect to the issues

raised by the NOD. • 38 C.F.R. § 19.29 • Herndon v. Principi, 311 F.3d 1121, 1124 (Fed. Cir. 2002).

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Supplemental Statement of the Case (SSOC)

• Supplemental Statements of the Case▫ A document prepared by the agency of original jurisdiction

(AOJ) to inform the appellant of any material changes in, or additions to, the information included in the SOC or any prior SSOC. 38 C.F.R. 19.31(a)

▫ The AOJ will furnish a SSOC if: AOJ receives additional pertinent evidence after a SOC A material defect in the SOC or a prior SSOC is found; or For any other reason the SOC or a prior SSOC is inadequate

38 C.F.R. 19.31(b)

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Substantive (Form 9) Appeal

The Form 9 Appeal is an important document, it is the one instance under the VA procedural rules where the veteran’s factual and legal arguments are required to be submitted.

The veteran must set forth specific arguments relating to the errors of fact or law in the RO’s initial decision denying benefits. 38 C.F.R. § 20.202 .

The Form 9 must be submitted within 60 days of the date of the SOC or SSOC

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The Board of Veterans’ Appeals

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The Board of Veterans’ Appeals (BVA)A. General Background

The Board of Veterans’ Appeals (BVA) is the second of the two major levels of review of claims within the VA.

The BVA is the final step of the administrative process before an appeal to the Court of Appeals for Veterans Claims (CAVC).

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The Board of Veterans’ Appeals (BVA)

B. Jurisdiction and Scope of Review

BVA has jurisdiction to review all questions of fact and law regarding claims for VA benefits; BVA decides “claims and issues.” “Claims” are requests for particular benefits. “Issues” are matters upon which the Board made a final decision.

The BVA is required to include a written statement of its finding and conclusions outlining the rationale or bases for them on all material issues of fact and law presented on the record. 38 C.F.R. § 20.1401(a). (2010)

BVA does NOT have jurisdiction over medical determinations, such as determinations of the need for an appropriateness of specific types of medical care and treatment.38 C.F.R. § 20.101. (2010)

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Jurisdiction and Scope of Review

Each case is considered de novo by the BVA. Veterans may present new documentary evidence and/or witnesses before the BVA. 38 U.S.C. § 7104 Jarrell v. Nicholson, 20 Vet.App. 326, 329 (2006).

The BVA must remand to the agency of original jurisdiction if it needs further evidence or clarification of a procedural defect. 38 C.F.R. §§ 19.9, 20.1304

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Hearings

Claimants have a right to a hearing either before a BVA VLJ sitting in Washington D.C., or before a traveling VLJ at the local RO. 38 C.F.R. § 20.705; 38 C.F.R § 14.628(a)(2)(iv-v)

Claimants may present testimony and evidence before a VLJ who will decide their appeal. 38 C.F.R. § § 20.706, 20.710

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BVA Administrative Decisions

In handling cases, the BVA may take one of the following actions (2012 data):

1. Allow the benefit sought 12,585 (28.4%);2. Remand 20,299 (45.8%);3. Deny 9,957 (22.5%); or 4. Other 1,459 (3.3%).

For further information on all statistical data relating to BVA decisions visit:

http://www.bva.va.gov/Chairman_Annual_Rpts.asp

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Timelines

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BVA Administrative Decisions

The BVA must follow any CAVC decisions that establish a rule of law.

– Although the VA may file a petition with the US Court of Appeals for the Federal Circuit to stay the effect of any CAVC decision.Ramsey v. Nicholson, 20 Vet.App. 223 (2006)

BVA is also bound to follow applicable statutes, VA regulations and precedent opinions of the VA General Counsel. 38 U.S.C. § 7104(c)

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PREPARING WRITTEN ARGUMENTS IN SUPPORT OF A CLAIM

No particular format is required in presenting written arguments. There are, however, some basic guidelines that are common to all good written legal arguments.

1. Identification of the VA benefits sought; 2. Legal requirements - What the law requires the evidence show in

order for the claimant to obtain the desired benefits; 3. Application of Law to Fact - Why the evidence of record supports

the grant of VA benefits for each benefit sought; and 4. What errors were committed by the VA regional office in the

original adjudication of this claim (if there was a prior adjudication).

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Filing a Reopened Claim at the RO

New and Material Evidence“New” evidence is existing evidence not previously submitted to

agency decision makers. 38 C.F.R. § 3.156(a)

This evidence could not have been of record at the time of the last denial and is not merely cumulative of other record evidence.Evans v. Brown, 9 Vet.App. 273, 283 (1996).

“Material” evidence is existing evidence that, by itself or with other evidence, relates to an un-established fact necessary to substantiate the claim and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a)

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Motions within the BVA

Three types of Motions before the BVA:

1. Motion to Vacate a BVA decision;2. Motion for Reconsideration of the BVA

decision; and3. Motion to Revise the BVA decision based on

Clear and Unmistakable Error (CUE).

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BVA Motions: Motion to Vacate

A previous BVA decision may be vacated by the BVA at any time upon request of the appellant or on the Board’s own motion, on the following due process grounds:1. When the appellant was denied its right to representation through

action or inaction by VA personnel;2. When a Statement of the Case was not provided; and3. When there was prejudicial failure to afford the veteran a personal

hearing.38 C.F.R. § 20.904

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BVA Motions: Reconsideration

Reconsideration of a BVA decision may be accorded at any time upon:▫ Allegation of obvious error of fact or law;▫ Discovery of new and material evidence in the form of

relevant records or reports of the service department concerned; or

▫ If the BVA grants the benefit sought, the proper effective date is set as if the previous decision had not been rendered.

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BVA Motions: CUE

Final BVA decisions are subject to reversal on the grounds of Clear and Unmistakable Error (CUE).

• Clear and unmistakable error is a very specific and rare kind of error of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error.

• Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. 38 C.F.R § 20.1403

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BVA Motions: CUE

The following are not clear and unmistakable error:1. A new medical diagnosis that “corrects” an earlier diagnosis

considered in a Board decision;2. The Secretary’s failure to fulfill the duty to assist; or3. A disagreement as to how the facts were weighed or

evaluated.

38 C.F.R. 20.1403

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BVA Motions: CUE

Earlier effective date: A decision of the BVA that revises a prior BVA decision on the grounds of CUE has the same effect as if the decision had been made on the date of the prior decision. 38 C.F.R 20.1406.

Once there is a final decision on a CUE motion, the prior BVA decision on the original issue is no longer subject to revision on the grounds of CUE. 38 C.F.R. 20.1409(c).

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BVA Motions: CUE

• A prior final BVA decision that was appealed to the CAVC cannot be the subject of a motion for CUE. 38 C.F.R. 20.1400.

• A CUE claim cannot be brought against a final, unappealed RO decision where the BVA has subsequently reopened the claim, considered it de novo, and denied the benefits previously denied in the RO decision.Donovan v. Gober, 10 Vet.App. 404, 410-411 (1997).

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Appealing to the CAVC

The CAVC shall have exclusive jurisdiction to review decisions of the BVA. 38 U.S.C. § 7252(a).

BVA has a duty to notify claimants of the right to appeal to the CAVC; this notice must accompany the decision from the BVA.

Claimants may appeal final BVA decisions to the CAVC within 120 days after the date on which the notice of the decision is mailed. 38 U.S.C. § 7266(a).

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Judicial Review of a Final Board of Veterans Appeals Denial

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U.S. COURT OF APPEALS FOR VETERANS CLAIMS

• The Veterans’ Judicial Review Act of 1998 (VJRA) established the U.S. Court of Veterans Appeals, now called the U.S. Court of Appeals for Veterans Claims (CAVC).

• The CAVC is an Article I Court based in Washington, D.C. and there are currently nine judges serving 15 year terms.

• See Pub. L. No. 100-687, 102 Stat. 4105 (1988).

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Rules and Procedures

• The Court’s Rules of Practice and Procedure can be found at: http://www.uscourts.cavc.gov/court_procedures/

• The applicable rules may be suspended to expedite a decision or for good cause. This can occur by the initiative of the court or according to a party’s motion. U.S. Vet. App. R. 2.

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http://www.uscourts.cavc.gov/court_procedures/

Attorney Representation

U.S. Vet. App. R. 46 governs representation and admissions of attorneys to practice before the Court.

The rule contains explicit requirements that must be fulfilled before an attorney or non-attorney can appear before the Court.

The rules for admission differ greatly according to whether or not the individual is an attorney.

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CAVC JURISDICTION

The CAVC has exclusive jurisdiction to review BVAdecisions. 38 U.S.C. § 7252(a).

Only veterans who do not completely prevail at the BVA may appeal to the Court. Holland v. Brown, 9 Vet. App. 324 (1996).

Although the Chairman of the BVA can request reconsideration of BVA decision, the VA cannot itself appeal a BVA decision to the CAVC. 38 U.S.C. § 7266(a) .

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Notice of Appeal

The 120-day period does not begin to run until two conditions are met:

1. The BVA mails its decision to the last known address of the claimant; and

2. If the claimant has a representative, the BVA sends a copy of the decision to the representative “by any means reasonably likely to reach the representative within the same time a copy would be expected to reach the representative if sent by first-class mail.” Santoro v. Principi, 274 F.3d 1366 (Fed Cir. 2001).

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CAVC SCOPE OF REVIEW

The CAVC may only review the documents that were before the BVA. ▫ 38 U.S.C. § 7252(b).

Exceptions to this rule include:▫ Documents the Court has constructive knowledge of;▫ Any document within the control of the VA; or▫ If the Court takes judicial notice of a particular fact.

See Bell v. Derwinski, 2 Vet. App. 611 (1992); Bowey v. Brown, 11 Vet. App. 106 (1998).

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The CAVC may review almost any issue of law that affected the outcome of a case which the CAVC has jurisdiction. 38 U.S.C. § 7361.

The CAVC is NOT bound by VA regulations, instructions by the VA Secretary or General Counsel opinions. ▫ Principles of administrative law still apply

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Findings of Fact

The CAVC has the authority to hold unlawful, set aside or reverse a VA finding of material fact adverse to a veteran if the finding is clearly erroneous.▫ The CAVC must have a definite and firm conviction that a mistake

has been committed.▫ The CAVC may not reverse if the evidence is merely plausible.▫ Where there are two permissible views of the evidence, the fact

finder’s choice between them cannot be clearly erroneous.

In Padgett v. Nicholson, the CAVC ruled that a BVA finding may be clearly erroneous even if there is some evidence supporting a BVA decision. 19 Vet. App. 84 (2005).

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CAVC SCOPE OF REVIEWIssues of Law

When reviewing issues of law, the Court reviews the agency’s resolution of the issue de novo, without giving any deference to the BVA’s view of the law.

The CAVC may review any issue of law that affected the outcome of a case, even authorities that bind the BVA such as VA General Counsel Opinions. 38 U.S.C. § 7252(a)(3).

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CAVC SCOPE OF REVIEW Application of Law to Facts

The standard is the arbitrary, capricious standard. Butts v. Brown, 5 Vet. App. 532, 538-40 (1993).

Examples:▫ VA selection of the appropriate diagnostic code

for purposes of rating a veterans disability.▫ Whether the BVA erred in determining that a

prior final agency decision did not contain clear and unmistakable error.

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CAVC SCOPE OF REVIEWIssues Beyond the CAVC Scope

The Court may not review findings that are favorable to the veteran.

The VJRA prohibits the Court from reviewing the rating schedule for disabilities.

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APPEALS TO THE FEDERAL CIRCUIT

Appeals of final CAVC decisions to the Federal Circuit must be made within 60 days of the CAVC judgment entry.

The Federal Circuit has jurisdiction over all questions of law that were relied upon by the CAVC in making its decision.

The Federal Circuit reviews questions of law and CAVC interpretations of law and regulations de novo.

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APPEALS TO THE U.S. SUPREME COURT

• Once the Federal Circuit renders a final decision, either the VA or the veteran may petition the U.S. Supreme Court for certiorari within 90 days of the Federal Circuit’s final action. See Scarborough v. Principi, 124 S.Ct. 1856 (2004).

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