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  • VA Disability, benefits, news and more.

    VA Disability, benefits, news and more.
    Tbird
    The VA Disability Calculator page will open in a new window.
    When the VA page opens, scroll down to locate the calculator.

    Summary: The VA Disability Calculator uses a unique "VA Math" method to compute combined impairment ratings for veterans with multiple service-connected conditions.
    Instead of simply adding up the percentages of each condition, the VA uses a combined rating table and a concept of "Whole Person Remaining."
    Each subsequent rating is a reduction of the whole person remaining. For instance, if a veteran has a 30% rating for one condition and a 40% rating for another, the total rating is not 70% but 60%. This is because the 30% rating is applied to the 70% of the person not already disabled by the first condition.
    In short.
    If the VA finds that a Veteran has multiple disabilities, the VA uses the Combined Rating Table below to calculate a combined disability rating. Disability ratings are not additive, meaning that if a Veteran has one disability rated 60% and a second disability 20%, the combined rating is not 80%. This is because subsequent disability ratings are applied to an already disabled Veteran, so the 20% disability is applied to a Veteran who is already 60% disabled. If you have multiple service-connected conditions — VA will combine them using VA Math. Here's how it works:
    VA starts with the premise that every veteran is 100 percent efficient or not disabled. So, if a veteran has a disability rating of 20 percent, the VA sees them as 80 percent non-disabled and 20 percent disabled. To include another disability rating of 10 percent, the VA will take 10 percent of the 80 percent non-disabled portion and add it to the existing 20 percent rating. This brings the veteran’s total disability rating to 28 percent, which will be rounded to 30 percent. This process continues with each disability rating the veteran has. How does the VA calculate a Veteran's percentage of disability? In this episode of theSITREP, Paul Corbett explains "VA Math" with a simple, step-by-step example. 
      Transcript
    0:00 Hello and welcome to another episode of the SITREP. I am a Marine Corps Veteran,  
    0:04 Paul Corbett, and a topic that tons  of you out there have emailed us about  
    0:09 is how does VA calculate your percentage of  service-connected disability, or what many  
    0:15 refers to VA math. We are going to break it down  Barney-style with a very simple process to follow,  
    0:22, but first, do me a favor and hit that like button  and be sure to subscribe so you don’t miss  
    0:27 future episodes, and you can help us reach as many  Veterans as possible. So, VA math: how is it,  
    0:35 Hypothetically, a Veteran can receive 40%  for their back, 30% for their knee, and 20%  
    0:42 for hearing loss, which all adds up to 90%, but VA  awards you with 70% service-connected disability  
    0:50 instead? The answer isn’t really that difficult to figure out. When calculating disability, you  
    0:56 want to first begin with the largest and work your way down to the smallest, as seen on the screen.  
    1:03 Starting with the back, we are going to take 100%, which is the current remainder  
    1:08 and will make more sense in a minute, and subtract the sum of 100% times 40%. It is important that  
    1:15 we remember the order of operations, where we  calculate what is in the parenthesis first,  
    1:21, which equals 40%, we then subtract that from 100%, and we end up with a remainder of 60%.  
    1:28 Now, with the knee, we want to start with the remainder, which is 60%. So, much like the  
    1:34 equation above, 60% minus the sum of 60% times  30%, which is 18%, equals a remainder of 42%.  
    1:45 We continue this process for hearing. We begin  with the remainder of the previous line,  
    1:50, so we have 42%, minus the sum of 42% times  20%, which is 8.4%, and gives us a remainder of  
    1:59 33.6%. Now that we have calculated each one of our  disabilities, we want to subtract the remainder  
    2:06 from 100%, which would be 100% minus 33.6%, equals  66.4%. However, VA always rounds to the nearest  
    2:18 10, so in this case, your disability rating would be rounded up to 70%. This is important  
    2:24 to keep in mind, though, yes, you are rated at 70% disability, but your actual rating is 66.4%.  
    2:32 Say you later receive a 10% rating for your shoulder. The current remainder is 33.6%  
    2:39, and when you follow the same process as the other  disabilities we calculated, you end up with the  
    2:44 It is exactly the same disability rating as before. So again,  remember, just because you are awarded a new or  
    2:51 slightly higher percentages of disability, it does  not mean that your rating will change - it may  
    2:57 stays the same. One last thing: there are special  circumstances where a Veteran’s disability may be  
    3:04 calculated completely differently. Such is the  case with Veterans who are permanently disabled,  
    3:09 have bilateral injuries or other circumstances.  To learn more about about this topic,  
    3:14 look for links in the video description below  and, more importantly, be sure to check out all  
    3:20 of our YouTube playlists that cover VA disability,  pensions, health care, home loans, and much more.
     
    Chris Attig of the popular Veterans Law Blog explains it.
    “Chris, if you add up all my VA Ratings for all my disabilities, I’m over 250% disabled. Why am I still getting paid at a 90% level?”  
    This question – or one like it – pops into my inbox several times weekly. The short answer is this: when you have multiple ratings for multiple medical conditions, the VA doesn’t ADD them together – it COMBINES them. The VA Combined Ratings Formula causes Veterans – and frankly, many VSOs and attorneys a lot of angst. And it did for me, too, until I learned one thing: the Secret behind VA Math. Before I tell you the Secret to Understanding Veterans Affairs Math, let me show you the easy way to do combined ratings. From Chris Attig, The Veterans Law Blog
    VA Math It’s Not Your Mother’s Arithmetic
    “VA Math” is how the VA computes combined impairment ratings for multiple conditions in a Veteran’s compensation benefits claim – and it requires that you unlearn real math. When a Veteran has multiple medical conditions that are service-connected, and the Veterans Affairs rates each at a different percentage, it would seem that they should add up your percentages to get to a total body impairment rating.
    The Easy Way to Do Combined Ratings.
    The VA publishes a combined rating table to assist in these calculations. The VA Combined Ratings Table is a table that shows your total impairment percentage when you have more than one disabling service-connected condition. List your disabilities, highest to lowest, with the percentage of impairment next to it. Start with the highest, and then one by one, use the above linked combined rating table to combine your remaining rating.
    The Secret Behind VA Math and the Combined Ratings Table.
    “VA Math” is how the VA computes combined impairment ratings for multiple conditions in a Veteran’s compensation claim – and it requires that you unlearn real math. When a Veteran has multiple medical conditions that are service-connected, and the VA rates each at a different percentage, it would seem that they should add up your percentages to get to a total body impairment rating. Things are not as they seem. If a Veteran has a 30% rating for condition A and a 40% rating for Condition B, the total rating is NOT 70%. The VA does not add multiple ratings to get a total rating; instead, they use a formula to get a combined rating. The VA computes the combined rating by considering each disability in order of severity, beginning with the highest evaluation. In the above example, the VA Combined Rating for the two conditions is 60%, not 70%. Here’s the secret to understanding the VA Combined Ratings Table. Your ratings are combined based on the concept of “Whole Person Remaining.” The idea is that if you have NO disabilities, you are a 100% whole person. If you have a 30% disability, you are 30% disabled and 70% whole. Each subsequent rating is a REDUCTION of the whole person remaining.
    The VA Combined Ratings Table in Practice.
    How does the VA get that combined rating? For example, where Condition A is rated at 30%, and Condition B is rated at 40%, the VA math works like this: Most severe rating: 40%. Second most severe rating: 30%. Combined rating: 60%.
    Here’s how we got there: the second rating of 30% is multiplied by the % of the whole person remaining after the 40% rating. In this example, 30% (second rating) is multiplied by 60% (percent of the whole person remaining after 40% rating). This means that while condition A limits the person to a 30-degree rate, it only limits 30% of the WHOLE person.
    So if the person is 0% impaired (with a 100% whole person value remaining), the condition limits them to 30%. However, if the person is already 40% disabled by another condition, Condition A can only limit the “whole person that remains.” It’s a tough concept to grasp, but in a way, it makes some sense. So, in our example, the second rating of 30% adds 18% to the initial rating of 40%, yielding a combined rating of 58%.
    The 58% rating is rounded up to 60%. Does this make sense? I don’t think so – this type of formula is a 50+-year-old calculation used by insurance companies in, commonly, workers’ compensation claims. Regardless of the archaic and non-sensical formula, here’s the deal. It’s the way it is. And in the great mess of tangled red tape that is the VA Bureaucracy, there are many fights we need to fight and win before going after this one.
    Combined Ratings
    Example of Combining Three Disabilities
    If three disabilities are ratable at 60 percent, 40 percent, and 20 percent, respectively, the combined value for the first two will be found opposite 60 and under 40 and is 76 percent. This 76 will be found in the left column, followed by the 20 rating in the top row. The intersection of these two ratings is 81. Thus, the final rating will be rounded to 80%.
    If the VA finds that a Veteran has multiple disabilities, the VA uses the Combined Rating Table below to calculate a combined disability rating. Disability ratings are not additive, meaning that if a Veteran has one disability rated 60% and a second disability 20%, the combined rating is not 80%. This is because subsequent disability ratings are applied to an already disabled Veteran, so the 20% disability is applied to a Veteran who is already 60% disabled. Below are the steps VA takes to combine ratings for more than one disability, as well as examples using the Combined Rating Table to illustrate how combined ratings are calculated.
    The disabilities are first arranged in the exact order of their severity, beginning with the greatest disability and then combined with the use of the Combined Rating Table below. Combined Rating Table:
    Ten is combined with (not added) 10 and = 19
    Click Here to view the Combined Rating Table
     
    10                    20           30           40           50           60           70           80           90
     
    19................... 27.......... 35.......... 43.......... 51.......... 60.......... 68.......... 76.......... 84.......... 92
    20................... 28.......... 36.......... 44.......... 52.......... 60.......... 68.......... 76.......... 84.......... 92
    21................... 29.......... 37.......... 45.......... 53.......... 61.......... 68.......... 76.......... 84.......... 92
    22................... 30.......... 38.......... 45.......... 53.......... 61.......... 69.......... 77.......... 84.......... 92
    23................... 31.......... 38.......... 46.......... 54.......... 62.......... 69.......... 77.......... 85.......... 92
    24................... 32.......... 39.......... 47.......... 54.......... 62.......... 70.......... 77.......... 85.......... 92
    25................... 33.......... 40.......... 48.......... 55.......... 63.......... 70.......... 78.......... 85.......... 93
    26................... 33.......... 41.......... 48.......... 56.......... 63.......... 70.......... 78.......... 85.......... 93
    27................... 34.......... 42.......... 49.......... 56.......... 64.......... 71.......... 78.......... 85.......... 93
    28................... 35.......... 42.......... 50.......... 57.......... 64.......... 71.......... 78.......... 86.......... 93
    29................... 36.......... 43.......... 50.......... 57.......... 65.......... 72.......... 79.......... 86.......... 93
    30................... 37.......... 44.......... 51.......... 58.......... 65.......... 72.......... 79.......... 86.......... 93
    31................... 38.......... 45.......... 52.......... 59.......... 66.......... 72.......... 79.......... 86.......... 93
    32................... 39.......... 46.......... 52.......... 59.......... 66.......... 73.......... 80.......... 86.......... 93
    33................... 40.......... 46.......... 53.......... 60.......... 67.......... 73.......... 80.......... 87.......... 93
    34................... 41.......... 47.......... 54.......... 60.......... 67.......... 74.......... 80.......... 87.......... 93
    35................... 42.......... 48.......... 55.......... 61.......... 68.......... 74.......... 81.......... 87.......... 94
    36................... 42.......... 49.......... 55.......... 62.......... 68.......... 74.......... 81.......... 87.......... 94
    37................... 43.......... 50.......... 56.......... 62.......... 69.......... 75.......... 81.......... 87.......... 94
    38................... 44.......... 50.......... 57.......... 63.......... 69.......... 75.......... 81.......... 88.......... 94
    39................... 45.......... 51.......... 57.......... 63.......... 70.......... 76.......... 82.......... 88.......... 94
    40................... 46.......... 52.......... 58.......... 64.......... 70.......... 76.......... 82.......... 88.......... 94
    41................... 47.......... 53.......... 59.......... 65.......... 71.......... 76.......... 82.......... 88.......... 94
    42................... 48.......... 54.......... 59.......... 65.......... 71.......... 77.......... 83.......... 88.......... 94
    43................... 49.......... 54.......... 60.......... 66.......... 72.......... 77.......... 83.......... 89.......... 94
    44................... 50.......... 55.......... 61.......... 66.......... 72.......... 78.......... 83.......... 89.......... 94
    45................... 51.......... 56.......... 62.......... 67.......... 73.......... 78.......... 84.......... 89.......... 95
    46................... 51.......... 57.......... 62.......... 68.......... 73.......... 78.......... 84.......... 89.......... 95
    47................... 52.......... 58.......... 63.......... 68.......... 74.......... 79.......... 84.......... 89.......... 95
    48................... 53.......... 58.......... 64.......... 69.......... 74.......... 79.......... 84.......... 90.......... 95
    49................... 54.......... 59.......... 64.......... 69.......... 75.......... 80.......... 85.......... 90.......... 95
    50................... 55.......... 60.......... 65.......... 70.......... 75.......... 80.......... 85.......... 90.......... 95
    51................... 56.......... 61.......... 66.......... 71.......... 76.......... 80.......... 85.......... 90.......... 95
    52................... 57.......... 62.......... 66.......... 71.......... 76.......... 81.......... 86.......... 90.......... 95
    53................... 58.......... 62.......... 67.......... 72.......... 77.......... 81.......... 86.......... 91.......... 95
    54................... 59.......... 63.......... 68.......... 72.......... 77.......... 82.......... 86.......... 91.......... 95
    55................... 60.......... 64.......... 69.......... 73.......... 78.......... 82.......... 87.......... 91.......... 96
    56................... 60.......... 65.......... 69.......... 74.......... 78.......... 82.......... 87.......... 91.......... 96
    57................... 61.......... 66.......... 70.......... 74.......... 79.......... 83.......... 87.......... 91.......... 96
    58................... 62.......... 66.......... 71.......... 75.......... 79.......... 83.......... 87.......... 92.......... 96
    59................... 63.......... 67.......... 71.......... 75.......... 80.......... 84.......... 88.......... 92.......... 96
    60................... 64.......... 68.......... 72.......... 76.......... 80.......... 84.......... 88.......... 92.......... 96
    61................... 65.......... 69.......... 73.......... 77.......... 81.......... 84.......... 88.......... 92.......... 96
    62................... 66.......... 70.......... 73.......... 77.......... 81.......... 85.......... 89.......... 92.......... 96
     
    Table I—Combined Ratings Table (cont.)
     
                            10           20           30           40           50           60           70           80           90
     
    63................... 67.......... 70.......... 74.......... 78.......... 82.......... 85.......... 89.......... 93.......... 96
    64................... 68.......... 71.......... 75.......... 78.......... 82.......... 86.......... 89.......... 93.......... 96
    65................... 69.......... 72.......... 76.......... 79.......... 83.......... 86.......... 90.......... 93.......... 97
    66................... 69.......... 73.......... 76.......... 80.......... 83.......... 86.......... 90.......... 93.......... 97
    67................... 70.......... 74.......... 77.......... 80.......... 84.......... 87.......... 90.......... 93.......... 97
    68................... 71.......... 74.......... 78.......... 81.......... 84.......... 87.......... 90.......... 94.......... 97
    69................... 72.......... 75.......... 78.......... 81.......... 85.......... 88.......... 91.......... 94.......... 97
    70................... 73.......... 76.......... 79.......... 82.......... 85.......... 88.......... 91.......... 94.......... 97
    71................... 74.......... 77.......... 80.......... 83.......... 86.......... 88.......... 91.......... 94.......... 97
    72................... 75.......... 78.......... 80.......... 83.......... 86.......... 89.......... 92.......... 94.......... 97
    73................... 76.......... 78.......... 81.......... 84.......... 87.......... 89.......... 92.......... 95.......... 97
    74................... 77.......... 79.......... 82.......... 84.......... 87.......... 90.......... 92.......... 95.......... 97
    75................... 78.......... 80.......... 83.......... 85.......... 88.......... 90.......... 93.......... 95.......... 98
    76................... 78.......... 81.......... 83.......... 86.......... 88.......... 90.......... 93.......... 95.......... 98
    77................... 79.......... 82.......... 84.......... 86.......... 89.......... 91.......... 93.......... 95.......... 98
    78................... 80.......... 82.......... 85.......... 87.......... 89.......... 91.......... 93.......... 96.......... 98
    79................... 81.......... 83.......... 85.......... 87.......... 90.......... 92.......... 94.......... 96.......... 98
    80................... 82.......... 84.......... 86.......... 88.......... 90.......... 92.......... 94.......... 96.......... 98
    81................... 83.......... 85.......... 87.......... 89.......... 91.......... 92.......... 94.......... 96.......... 98
    82................... 84.......... 86.......... 87.......... 89.......... 91.......... 93.......... 95.......... 96.......... 98
    83................... 85.......... 86.......... 88.......... 90.......... 92.......... 93.......... 95.......... 97.......... 98
    84................... 86.......... 87.......... 89.......... 90.......... 92.......... 94.......... 95.......... 97.......... 98
    85................... 87.......... 88.......... 90.......... 91.......... 93.......... 94.......... 96.......... 97.......... 99
    86................... 87.......... 89.......... 90.......... 92.......... 93.......... 94.......... 96.......... 97.......... 99
    87................... 88.......... 90.......... 91.......... 92.......... 94.......... 95.......... 96.......... 97.......... 99
    88................... 89.......... 90.......... 92.......... 93.......... 94.......... 95.......... 96.......... 98.......... 99
    89................... 90.......... 91.......... 92.......... 93.......... 95.......... 96.......... 97.......... 98.......... 99
    90................... 91.......... 92.......... 93.......... 94.......... 95.......... 96.......... 97.......... 98.......... 99
    91................... 92.......... 93.......... 94.......... 95.......... 96.......... 96.......... 97.......... 98.......... 99
    92................... 93.......... 94.......... 94.......... 95.......... 96.......... 97.......... 98.......... 98.......... 99
    93................... 94.......... 94.......... 95.......... 96.......... 97.......... 97.......... 98.......... 99.......... 99
    94................... 95.......... 95.......... 96.......... 96.......... 97.......... 98.......... 98.......... 99.......... 99
     
    The degree of one disability will be read in the left column and the degree of the other in the top row, whichever is appropriate. The figures appearing in the space where the column and row intersect will represent the combined value of the two. This combined value is rounded to the nearest 10%. If there are more than two disabilities, the combined value for the first two will be found as previously described for two disabilities. The exact combined value (without rounding yet) is combined with the degree of the third disability. This process continues for subsequent disabilities, and the final number is rounded to the nearest 10%. Source: What’s the Secret to Understanding the Veterans Affairs Combined Ratings Table? Chris Attig The Veterans Law Blog

    Tbird
    38 CFR 19.29 Statement of the Case
    After the VA receives a NOD from a veteran, it will prepare the Statement of the Case (SOC) for all issues that were not granted service connection or the maximum rating. The SOC explains the decision, including a cover letter explaining the appeal process. Also included in the SOC is a list of the issues being decided in the claim, a summary of the evidence, the pertinent laws and VA regulations related to the claim, and the decision and reasoning behind each issue. The SOC may include helpful information for the veteran to prepare his or her appeal. Still, the most important thing to remember about the SOC is that the veteran has 60 days from the date of the SOC cover letter to send in VA Form 9, which is the substantive appeal. Failure to respond to the SOC within 60 days by filing VA Form 9 may result in the appeal being closed and the decision becoming final.
     
    Watch Attig Law Firm Statement of the Case Example
    How to Read and Understand this VA Form
     

    After watching this video, you will have learned:
    How to calculate the CORRECT deadlines for filing your VA Form 9 Appeal to the Board of Veterans' Appeals What does a Statement of the Case look like?  The 4 Parts of the Statement of the Case that you NEED to understand and verify  Tips to make your arguments in your VA Form 9 
    Appeal to the Board of Veterans' Appeals BETTER based on what you read on the Statement of Case.  How do you tell if the VA made some basic errors in denying your claim?  Much more! Statement of the Case (SOC): 
    This document is crucial as it outlines the reasons for the VA's decision on your claim and sets the stage for your appeal to the Board of Veterans' Appeals. Here's a comprehensive guide to understanding and effectively responding to an SOC.
    Important points
    *   Understand the importance of the SOC in the VA appeals process.
    *   Know the critical timelines and deadlines associated with the SOC.
    *   Learn how to analyze and respond to the SOC effectively.
    What is a Statement of the Case?
    A Statement of the Case (SOC) explains the VA's decision regarding your claim. The VA issues it after you file a Notice of Disagreement (NOD) with the VA’s initial decision. The SOC includes a summary of the evidence, applicable laws, and the reasons for the VA's decision. It is essential to understand that the SOC starts a critical 60-day timeline for you to file your substantive appeal using VA Form 9.
    Initial Steps in the VA Appeals Process
    File Your Original Claim: Submit your claim to the VA for benefits. VA Decision: The VA will either grant or deny your claim and issue a VA ratings decision. Notice of Disagreement (NOD): If you disagree with the VA's decision, you file an NOD. Request a DRO Hearing: You can request a Decision Review Officer (DRO) hearing or an informal DRO conference. DRO Review Process: The DRO will review your case and either grant your claim or continue the denial.  Statement of the Case (SOC): If the DRO continues the denial, the VA will issue an SOC. Analyzing the Statement of the Case
    When you receive your SOC, it's essential to review it thoroughly. Here are the key components to focus on:
    Cover Letter: The SOC usually starts with a cover letter, which includes the date of issuance. This date is crucial as it marks the beginning of your 60-day window to file your appeal. Veteran's Information: Ensure that your name, claim number, and social security number are correct. Any errors here can lead to significant issues down the line. Make sure that you listed all the issues you raised in your original claim and NOD in the List of Issues. If any issues are missing, you need to address this in your appeal. Evidence Summary: The SOC will list all the evidence the VA considered in deciding. Ensure you have copies of all these documents. Pertinent Laws and Regulations: The SOC will cite various laws and regulations. While this section can be dense, it's essential to ensure that the VA is using current and applicable laws. Decision and Reasons: This section outlines the VA's decision and the reasons for it. Pay close attention to this part, as it will guide your appeal strategy. Common Pitfalls and How to Avoid Them
    Missing the Deadline: You have 60 days from the date on the SOC cover letter to file your VA Form 9. Missing this deadline can cause the dismissal of your appeal. Incomplete Evidence: Ensure that all the evidence listed in the SOC is in your claims file. If any documents are missing, request them from the VA immediately. Misinterpreting the Law: The SOC will cite various laws and regulations. If you're unsure about any legal references, seek clarification from a knowledgeable source. Filing Your Substantive Appeal
    To file your substantive appeal, you need to complete VA Form 9. Here are some tips for filling out the form:
    Be Thorough: Use continuation pages if necessary. The space on the form rarely details your arguments fully. Address All Issues: Ensure that you address all the issues listed in the SOC. Include any issues that were omitted in your appeal. Provide Specific Arguments: Relate your arguments to specific errors of fact or law made by the VA. Be as detailed as possible. Sign and Date: Ensure that you sign and date the form. The reviewer may reject forms that are unsigned. Conclusion
    Understanding and effectively responding to a Statement of the Case is crucial in the VA appeals process. By thoroughly reviewing the SOC, gathering all necessary evidence, and filing a comprehensive VA Form 9, you can significantly improve your chances of a successful appeal. If you need assistance, seek help from accredited agents, attorneys, or veteran service organizations.

    Tbird
    Tbird, a Navy veteran, transformed her frustration with the VA disability claims process into a mission to help fellow veterans, leading to the creation of HadIt.com in 1997—a website that became a vital resource and community for veterans navigating the complex system. Tbird's VA Claims Struggle
    After returning to civilian life in 1990, Tbird encountered significant challenges navigating the complex VA disability claims process. The frustration and sense of injustice she experienced became the catalyst for her mission to help fellow veterans. Recognizing that her struggles were likely shared by many others who had served their country, Tbird began meticulously gathering information about the claims process, spending late nights studying documents and deciphering legal jargon. Her determination to make a difference led her to acquire new skills, including teaching herself HTML, which would later prove instrumental in creating a digital platform to support veterans. Birth of HadIt.com

    On January 20, 1997, HadIt.com was launched as a digital sanctuary for veterans seeking guidance and support in navigating the VA claims process. The website, born out of Tbird's personal struggles and determination, quickly became a lifeline for veterans across the country. By leveraging the emerging power of the internet, Tbird created a platform that not only provided crucial information but also fostered a sense of community among veterans facing similar challenges. HadIt.com's forums became a hub of activity, where veterans could share their experiences, exchange advice, and celebrate victories together, transforming individual struggles into collective wisdom. Building Veteran Community
      The success of HadIt.com was rooted in its ability to create a strong sense of camaraderie among veterans. The website's forums buzzed with activity, providing a platform for servicemen and women to share their stories, offer encouragement, and celebrate victories together. This digital community became a source of solace and strength for many, reminding veterans that they were not alone in their struggles. Tbird's dedication to the cause served as an inspiration, and the collective wisdom shared on the platform became a powerful resource for those navigating the complex VA claims process. HadIt.com's Lasting Impact
      The transformative impact of HadIt.com extended far beyond its initial mission, becoming a catalyst for change in the veteran support landscape. As the website's influence grew, it not only empowered individual veterans but also shed light on systemic issues within the VA claims process. This increased visibility led to broader discussions about veteran care and rights, potentially influencing policy changes and improvements in the VA system. The success stories shared on the platform served as tangible evidence of the power of informed advocacy, inspiring countless veterans to persist in their claims and seek the benefits they deserved. Tbird's Enduring Legacy
      Tbird's creation of HadIt.com in 1997 has left an enduring legacy in the veteran community. The website, which began as a personal mission to help fellow veterans navigate the complex VA disability claims process, has grown into one of the oldest and most respected veterans disability claims communities. For over two decades, HadIt.com has served as a vital resource, providing veterans with a platform to research VA Disability Claims procedures, share experiences, and offer mutual support. The site's active discussion forum has become a cornerstone of its success, fostering a community where veterans can ask questions, receive guidance, and find emotional support from others who have faced similar challenges. Tbird's initiative has not only empowered countless veterans to advocate for their rights but has also contributed to a broader understanding of the challenges faced by veterans in accessing their benefits. Tbird continues to be a presence on HadIt.com, offering advice and creating content, while also working on her memoirs. If you’re interested, you can read her stories as she writes and publishes them here. Diary of A Mad Sailor (Tbirds Memoirs)

    Tbird
    Navigating the Veterans Disability Claims Process: A Concise Guide
     
    The VA disability claims process can be complex, but understanding some key steps can significantly improve your chances of success. Here's a guide to help you navigate the process effectively:
    Eligibility
    VA disability claims process begins with understanding the eligibility requirements. 
    A combination of primary and specific factors determines eligibility. (See Caluza Triangle)
    Basic eligibility often relates to the type of discharge received and the amount of time served. Veterans who do not meet these basic requirements cannot receive the benefit. However, meeting the basic requirements means specific eligibility factors will determine the benefit.
    After VA confirms your eligibility, you’ll need to gather evidence to support your claim. This includes your medical records and any other documentation that can help to substantiate your claim. You do need solid evidence to be able to connect your disability to your military service.
    Your Eligibility Depends on:
    Type of discharge Length of service Service-connected disability Gather evidence linking your disability to your military service, including medical records and other supporting documentation.
    Read Documenting Your VA Claim – Examining your service medical records
    File Your Claim
    Choose the correct forms: VA Form 21-526EZ: Application for Disability Compensation VA Form 21-686c: Declaration of Status of Dependents VA Form 21-8940: Application for Increased Compensation Based on Unemployability Submit your claim online, by mail, or in person at a VA office. Track your claim status through your VA.gov account. The claim will go through the following stages. Keep in mind that it’s not necessarily a linear process. Your claim may go back and forth from evidence gathering to review and back again. That can be frustrating, but it is normal. Claim received
    VA will let you know when they receive your VA disability claim. If you file your claim online, you'll get an on-screen message after you submit the form. If you mail your application, VA will send you a letter informing you they have your claim. You should get this letter in about 1 week, plus mailing time, after VA receives your claim. Initial review
    VA reviews your claim. Evidence gathering, review, and decision
    During this step, VA does 3 things: Ask for evidence from you, health care providers, government agencies, etc. Review the evidence Make a decision If VA needs more evidence during the review, your claim may return to this step more than once. Preparation for notification
    VA gets your claim decision packet ready to mail. Claim complete
    The VA will send you a packet by U.S. mail with details of the decision on your claim. Please allow 7 to 10 business days for your packet to arrive before contacting a VA call center. Your claim may return to the gathering evidence phase at any point if the VA discovers that more information is needed.
    Always ask for a copy of anything submitted to the VA on your behalf. This ensures you have a record of all communications and submissions.
     
    C&P Exam Preparations
    The Compensation and Pension (C&P) exam is crucial for determining your disability severity and its connection to your service.
     
    What to Expect During the Exam
    The C&P exam evaluates the severity of your disability and its connection to your military service. It is not intended for treatment purposes. The VA physician will review your medical history and ask questions about your condition. Make sure to attend all scheduled exams, even if you believe some are unnecessary.
     
    Read Compensation and Pension (C&P) Exams Do’s and Don’ts
     
    Tips for a successful exam:
     
    Be honest and thorough about your symptoms and triggers if applicable Bring relevant medical records Consider keeping a symptom journal Attend all C&P exams  
    Maximize Your Benefits
    Understand secondary conditions: These are ailments caused or aggravated by a service-connected disability. Read 38 CFR 3.310 Disabilities that are proximately due to, or aggravated by, service-connected disease or injury
    5 Ways to establish service connection in VA disability compensation claims
    2 Request reevaluation if your condition worsens. Submit new medical evidence to support your claim.  
    Seek Professional Help
    Consider getting help from:
     
    VA-accredited representatives Veterans Service Organizations (VSOs) Experienced VA disability attorneys (especially for appeals)  
    Takeaways
    Understand eligibility requirements Gather comprehensive documentation medical records, in service and out, buddy letters, letters from family, medical research. File your initial claim as early as possible to preserve the earliest effective date. Prepare for the C&P exam Read Compensation and Pension (C&P) Exams Do’s and Don’ts Seek professional help when needed  
    Remember, the process can be challenging, but with proper preparation and guidance, you can secure the benefits you deserve. Don't hesitate to use available resources and seek professional help to navigate the complexities of the VA disability claims process.
     
    Knowledge Is Power!
     
     

    Tbird
    The Supreme Court overturning the Chevron doctrine may lead to changes in how veterans file disability compensation claims with the VA. Veterans disputing VA rulings might benefit from the ruling, as it removes the requirement for courts to follow federal agencies’ interpretations of vague laws.
    Highlights:
    Historical background: The Chevron doctrine, created in 1984, obliged courts to defer to federal agencies’ explanations of vague statutes. In June 2024, the Supreme Court overturned Chevron and mandated that courts independently interpret statutes. Veterans may benefit from this change as it could cause more favorable decisions for those appealing VA claim denials, with courts no longer deferring to VA interpretations. The impact of Buffington v. McDonough case is worth noting. The impact of the Buffington v. It is worth noting the impact of the Buffington v. McDonough case, where the VA’s interpretation of a statute denied Thomas Buffington, an Air Force veteran, almost three years of retroactive disability payments. The new ruling could have led courts to rule in Buffington’s favor, independent of the VA’s interpretation Implications: Increased judicial scrutiny of VA rulings Potential for more favorable outcomes for veterans Possible longer wait times for decisions due to increased litigation Uncertainty and inconsistency in rulings across jurisdictions While this change offers potential benefits for veterans challenging benefit denials, it may also lead to longer processing times and increased complexity in the appeals process.
    Sources:
    The History of the Chevron Doctrine FindLaw 01/19/2024
    The Chevron Doctrine The Cato Institute Summer 2023
    Buffington v. McDonough
    Cornell Law School Legal Information Institute 12/07/2022

    Tbird
    The 5, 10, 20-year rules...   Five-Year Rule    38CFR3.344(c) Stabilization of disability evaluations   The five-year rule states that the VA can’t reduce a veteran’s disability that’s been in place for five years unless the condition improves over time on a sustained basis. The veteran will likely need to present medical evidence to prove the material improvement of their condition. Hill and Ponton The VA Disability Five-Year Rule: What Veterans Need to Know
    The VA Disability Five-Year Rule, which requires the VA to re-evaluate veterans with certain types of disabilities periodically, can have several effects on veterans. One potential effect of the Five-Year Rule is that a veteran’s disability rating may be adjusted based on the re-evaluation results. If the VA determines that a veteran’s condition has improved, their disability rating may be reduced, which could decrease their compensation. On the other hand, if the VA determines that a veteran’s condition has worsened, their disability rating may be increased, which could increase their compensation. Hill and Ponton   For clarity on the 5-year rule: This says the VBA must have proof of sustained improvement. An example might be when a Veteran has a mental health condition yet does not go to a psychologist/psychiatrist. Or if the veteran has never had his service-connected back status noted in the current medical records. Those situations would suggest a sustained improvement because the Veteran did not seek treatment or therapy or at a minimum get a current status noted in the medical records.   Ten-Year Rule 38CFR3.957 Service connection Ten-Year Rule.
    Service connection for any disability or death granted or continued under title 38 U.S.C., which has been in effect for 10 or more years will not be severed except upon a showing that the original grant was based on fraud or it is clearly shown from military records that the person concerned did not have the requisite service or character of discharge. The 10 years will be computed from the effective date of the Department of Veterans Affairs finding of service connection to the effective date of the rating decision severing service connection, after compliance with § 3.105(d). The protection afforded in this section extends to claims for dependency and indemnity compensation or death compensation.
      Twenty-Year Rule 38CFR3.951 Preservation of disability ratings Twenty-Year Rule.
    (a) A readjustment to the Schedule for Rating Disabilities shall not be grounds for reduction of a disability rating in effect on the date of the readjustment unless medical evidence establishes that the disability to be evaluated has improved. 
    (Authority: 38 U.S.C. 1155)
    (b) A disability that has been continuously rated at or above any evaluation of disability for 20 or more years for compensation purposes under laws administered by the Department of Veterans Affairs will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud. Likewise, a rating of permanent total disability for pension purposes that has been in force for 20 or more years will not be reduced except upon a showing that the rating was based on fraud. The 20 years will be computed from the effective date of the evaluation to the effective date of reduction of evaluation. 
    Protection when veteran reaches 55:
    38 CFR 3.327(b)(2)(iv) Reexaminations (iv) In cases of veterans over 55 years of age, except under unusual circumstances
    VA M-21 IV.ii.1.A.1.e.   As is discussed in M21-1, Part IV, Subpart ii, 1.A.1.d, and with only rare exceptions, Veterans over the age of 55 must not be routinely recalled for reexamination. Whether a case is found to involve the “unusual circumstances” described above and in 38 CFR 3.327(b)(2)(iv) is an individual, fact-specific determination left to the discretion of the rating activity.
    Reference:
    For more information on protection resulting from retroactive increases, see VAOPGCPREC 68-1991.
      NOTE: The service connection can be removed until a percentage is in place for 10 years. After that, the service connection is protected.   For example, 2020 using the same disability rating   1998 - Initially Service Connected @ 10% RESULT: Service Connection Protected in 2008 RESULT: 10% Protected from reduction in 2018 (20 years) 2020 - Service Connection Increased @ 30% RESULT: 30% is Protected from reduction in 2040 (20 years) 2022 - Service Connection Increased @ 50% RESULT: 50% is Protected from reduction in 2042 (20 years) ------- The second example for 2020:   Example of protected percentages: • A Veteran gets awarded @ 30% in 1991. • The Veteran files for an increase and is awarded 70% in 2004. • The Veteran files for and is awarded TDIU status in 2005. --------- RESULT: In 2001 (10 years), the condition's service connection is protected. RESULT: In 2011 (20 years), the 30% is protected from reduction (except for fraud). RESULT: In 2024 (20 years), the 70% is protected from reduction. RESULT: In 2025 (20 years), the TDIU will no longer be monitored yearly for income and is protected from reduction. In addition, the Veteran is automatically P&T. Further Reading:
    38 CFR § 3.344 - Stabilization of disability evaluations Rating Reductions and Severance Of Service Connection - 2019 - NVLSP

    Tbird
    Documenting Your VA Disability Claim
    Organizing Service Medical Records:
    Number each page sequentially (e.g., 1 of 100, 2 of 100) Make a colored copy (yellow or buff) of the original records Work from the copy, storing the original safely Creating a Medical Evidence Index:
    Review records page by page For relevant entries: Number them (e.g., #1, #2)Bracket in red. Note the page number and summary on a separate index sheet. Identifying Evidence:
    Study symptoms of your diagnosis Look for related medications prescribed Note symptoms that align with your condition Getting Current Medical Documentation:
    Have doctors document your diagnosis in medical records Include these records in your claim Consider a $50 office visit for documentation (cheaper than later independent medical opinions) Key Questions for Your Claim:
    Were you diagnosed with the illness/injury during service? Is your current diagnosis related to that problem? Was it documented in your service medical record? Do you have a current diagnosis related to your service? Was a pre-existing condition aggravated by service? Can you link the aggravation to service-related illness/injury? Potential Sources of Information:
    Service Medical Records Hospital Records (may require FOIA request) Performance Reports After-Action Reports Personal journals and letters home Conversations with fellow service members Incident Reports Key Points:
    Get a current diagnosis and severity assessment before claiming Request a copy of your service medical records If you’ve had a previous claim, request a copy of your claims folder (c-file)
    Tip: Use a rubber stamp with your full name, SSN, and address on each page submitted to the VA for easy identification.

    Tbird
    10 Ringtones Not To Use in Your Therapist's Office

    I Wanna Be Sedated – Ramones Hair Of The Dog – Nazareth (Chorus) Comfortably Numb – Pink Floyd (Probably anything from Pink Floyd) Shattered – Rolling Stones 19th Nervous Breakdown – Rolling Stones Mother’s Little Helper – Rolling Stones Blaze Of Glory – The Alarm One Way Out – The Allman Brothers Shark Attack – JAWS White Rabbit – Jefferson Airplane

    Tbird
    It’s no surprise that the 4th of July presents possible triggers for veterans with PTS(D).
    Plan, communicate, and cope. These tips will help you through the 4th of July celebrations.
    “Even though fireworks entertain us, it is not uncommon for the sounds, intense light, or smells to cause distress. Those who have gone through a trauma that included explosions, gunfire, loud noises or fire may be more likely to find fireworks to be a reminder—a trigger or cue—of such past events.” Trauma Reminders: Fireworks National Center for PTSD.
    Some common coping strategies for veterans include:
    Get yourself some ear protection: Noise-canceling headphones or earplugs to muffle firework sounds can help. I rely on my headphones. I use them every day; they help me focus. It splits my focus on whatever work I am doing and listening, and there’s little room for my mind to wander into dangerous waters.

    When I go to family events, I have my headphones with me. That way, if things agitate me, I can cover one ear and listen to music, ocean sounds, audiobooks, or YouTube videos. Focusing on listening distracts me from the agitating event or person.
    Create a calm environment at home by dimming lights and using blackout curtains.
    Practicing breathing exercises and mindfulness techniques. Check out this link to some YouTube meditation calming videos. If these don’t work for you, search for meditation techniques.
    Remind yourself you’re safe and the sounds are just fireworks, not explosions; fireworks do not put you in danger; it is triggering for many, so just keep reminding yourself that it’s just fireworks. My 7-year-old nephew illustrated this to me the other day. A bee was flying around, and I heard him keep repeating to himself, “Bees are our friends, bees are our friends.” So come, Fourth of July, I’ll be saying it’s just fireworks, it’s just fireworks.
    2. If you want to be away from it all, try camping or renting a cabin in a state or national park. Find a park here.
    3. If you’re comfortable ask your neighbors about their plans for fireworks, it can help you know what to expect. Some veterans use yard signs to ask for consideration when shooting off fireworks. Here are some signs you can get from Amazon.
    4. Check if your community organizes an “Escape the Fireworks” event. These events, designed for veterans, provide a safe space during the July 4th celebrations. Search Google with the following “Escape the Fireworks” + [your city and state].
    5. If you have a therapist, talk to them and have them help you with coping strategies. Remember, you are not alone.
    Reach out, I have, and it helped:
    Veterans Crisis Chat Line
    Call the Veterans Crisis Line at 988, then press 1
    Text the Veterans Crisis Line 838255
    Key
    Plan
    Communicate your need
    Use coping techniques that work for you

    Tbird
    Request personnel and/or medical records online. There are more ways to get service records. Learn about military service records (e.g., DD Form 214).   Request Personnel and/or Medical Records Online More ways to get service records Learn about military service records (e.g., DD Form 214) Recently separated veteran? Request DD 214/Separation Document Online What’s available online? Locate older (pre-WW I) military service records Using military records for genealogical research Other military and veteran records
      Replace Lost Medals and Awards Learn how to replace lost or damaged ones.

    Browse WWII Photos. View a sample of their extensive collection of photographs from World War II.
    Alternate Records Resources
    Alternate Sources of Military Service Data. When proof of military service is needed, NPRC (MPR) attempts to reconstruct certain basic service data from alternate sources.NPRC (MPR) has identified many sources, but each contains limited military service information. They are utilized to piece together (reconstruct) basic service data. NA Form 13075, Questionnaire About Military Service
    Medical-Related Alternate Records. 
    In 1988, computer tapes containing ten million hospital/treatment facility admission records were transferred to NPRC (MPR). These records, originally created by the U.S. Army Surgeon General’s Office (SGO), were discovered by the National Academy of Sciences and offered to the National Archives for NPRC (MPR) use. The source records existed in a computer code format and required extensive analysis to interpret the code into English. Between 1988-1990, NPRC (MPR) was able to salvage 7.8 million records of individual admissions for use as a major supplement to other smaller sources of medical information.
    Personnel-Related Alternate Sources. 
    A primary source of alternate data is a collection of 19 million final pay vouchers. These records provide name, service number, dates of service, and character of service. These are the most critical service data elements needed for the reconstruction process. With these and other organizational records (enlistment ledgers, service number indexes, etc.), NPRC (MPR) personnel can usually verify military service and provide a Certification of Military Service. This Certification can be used for any purpose for which the original discharge document was used, including the application for veterans benefits.
    The 1973 Fire at NPRC
    On July 12, 1973, a disastrous NPRC (MPR) fire destroyed approximately 16-18 million Official Military Personnel Files. The affected record collections are described below. No duplicate copies of the records that were destroyed in the fire were maintained, nor was a microfilm copy ever produced. There were no indexes created before the fire. In addition, millions of documents had been lent to the Department of Veterans Affairs before the fire occurred. Therefore, a complete list of lost records is not available. Nevertheless, NPRC (MPR) uses many alternate sources in its efforts to reconstruct basic service information to respond to requests.
    Related
    Agency Information Collection Activity Under OMB Review: Alternate Signer Certification NPRC To Begin Phase One To Reopen Filed Claim 1 Dec 2020. NPRC says it sent my Records to VA 21 May 21. VA says it is waiting for NPRC to send records. IBS Decision Letter Jan 2021 Deployment versus Permanent Change of Station, or “PCS move,”; deployment would not be marked as “foreign service” on a DD214; Inpatient Military Hospital Records (referred to by NPRC as “clinical records”) are not kept by NPRC as part of veterans STRs; Military Service Records
    Although recent military and medical records may not be available online, veterans and their families can still access free copies of their DD Form 214 (Report of Separation) and other official service records. There are several ways to do so, including…
    DD 214/ Separation Documents Official Military Personnel File (OMPF)  Replacement Medals Medical and Health Records Burials and Emergency Requests  Natural Disaster Requests You can start your request online here.

    Tbird
    Filing PTSD claims with the VA can be a complex and challenging process. Here are some common challenges that veterans face:
    Proving the Diagnosis Current Diagnosis Requirement: Veterans must have a current diagnosis of PTSD from a qualified mental health professional. Claims often fail if the VA determines no valid diagnosis[2][5]. C&P Exam Issues: The Compensation and Pension (C&P) exam is critical, but VA examiners sometimes make mistakes, such as not thoroughly reviewing the veteran’s file or failing to consider statements from the veteran and others[2][12]. Documenting the Stressor
    In-Service Stressful Event: Veterans must provide credible supporting evidence of a specific in-service stressor. This can be particularly difficult for non-combat-related PTSD claims, where incidents like personal assaults or accidents may not be well-documented[1][8][10]. Alternative Evidence: For personal trauma cases, veterans may need to seek alternative sources of evidence, such as police reports, medical records, or statements from family and friends[10].  
    Gathering and Submitting Evidence
    Missing Records: Claims can be denied due to missing service records or other necessary documentation. Veterans often need to gather extensive evidence, including medical records, personal statements, and military personnel records[1][9][10]. Complex Paperwork: The process involves filling out specific forms, such as VA Form 21-0781 for PTSD claims or VA Form 21-0781a for claims related to personal assault. Navigating these forms and ensuring all required information is included can be daunting[1][5][6].  
    Understanding and Meeting Eligibility Requirements
    Eligibility Criteria: Veterans must meet specific eligibility criteria, including having a stressor that occurred during service and a diagnosis of PTSD related to that stressor. Misunderstanding these requirements can lead to claim denials[5][9]. Presumptive Conditions: Some conditions are considered presumptive, meaning the VA assumes they are service-related. However, understanding which conditions qualify and how to prove them can be challenging[1]. Appealing Denied Claims
    Appeal Process: Many veterans face the challenge of appealing denied claims. This process can be lengthy and requires additional evidence and sometimes legal assistance[2][6][9]. Re-evaluations and Increased Ratings: Veterans seeking to increase their disability rating or undergoing re-evaluations must provide new evidence and may face additional scrutiny[1][6][8]. Mental Health Stigma and Treatment
    Stigma: The stigma associated with mental health issues can deter veterans from seeking treatment or filing claims. This can result in a lack of documented evidence for a successful claim[3][13]. Treatment and Symptom Management: Veterans often need continuous treatment for PTSD, and managing symptoms while navigating the claims process can be overwhelming[6][13]. Administrative and Bureaucratic Hurdles
    Lengthy Process**: The claims process can take several months, and the bureaucratic nature of the VA system can be frustrating and stressful for veterans[6][9]. Errors and Miscommunication**: Errors in the claims process, such as incorrect information or miscommunication between the VA and the veteran, can lead to delays and denials[9][16]. Overall, the process of filing a PTSD claim with the VA is fraught with challenges, from proving the diagnosis and documenting the stressor to navigating the complex paperwork and dealing with the administrative hurdles. Veterans often benefit from the assistance of Veterans Service Organizations (VSOs) and legal advocates to help them through this process[6][9].
    Sources
    [1] PTSD VA Ratings: What You Need to Know | Military.com https://www.military.com/benefits/ptsd-va-rating.html
    [2] How to Win Your PTSD Claim - VA Disability Advocates Blog https://veteranshelpgroup.com/how-to-win-your-ptsd-claim/
    [3] [PDF] Compensation and PTSD https://www.ptsd.va.gov/publications/rq_docs/V18N4.pdf
    [4] Persistent Serious Mental Illness among Former Applicants for VA ... https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6487633/
    [5] Disability Compensation For PTSD | Veterans Affairs https://www.va.gov/disability/eligibility/ptsd/
    [6] VA Benefits and Claims - PTSD https://www.ptsd.va.gov/gethelp/va_benefits_claims.asp
    [7] Post-Traumatic Stress Disorder: Proving and Defending Claims https://www.americanbar.org/groups/tort_trial_insurance_practice/publications/the_brief/2018-19/spring/posttraumatic-stress-disorder-proving-and-defending-claims/
    [8] Non-combat Related Ptsd Claims

    [9] Reasons My VA PTSD Claim Was Denied - Gerling Law https://www.gerlinglaw.com/reasons-my-va-ptsd-claim-was-denied/
    [10] M21-1, Part VIII, Subpart iv, Chapter 1, Section B - Development for Posttraumatic Stress Disorder (PTSD) Claims Related to Personal Trauma https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000177469/M21-1-Part-VIII-Subpart-iv-Chapter-1-Section-B-Development-for-Posttraumatic-Stress-Disorder-PTSD-Claims-Related-to-Personal-Trauma?query=Section%20D.%20%20Claims%20for%20Service%20Connection%20(SC)%20for%20Posttraumatic%20Stress%20Disorder%20(PTSD)
    [11] Best Practice Manual For Posttraumatic Stress Disorder - PTSD Post ...

    [12] PTSD C&P Results but I need some help understanding

    [13] Consideration of substance use in compensation and pension ... https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6364894/
    [14] 6 Other PTSD Compensation Issues - The National Academies Press https://nap.nationalacademies.org/read/11870/chapter/8
    [15] PTSD Raiting 70 or 100% - HadIt.com Veterans Disability Community

    [16] Lowballed? - PTSD Post Traumatic Stress Disorder Claims
    [17] Can Some One Give Me Some Insight On My Ptsd Claim
    [18] [DOC] Section D. Claims for Service Connection for Posttraumatic Stress ... https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000177469/M21-1-Part-VIII-Subpart-iv-Chapter-1-Section-B-Development-for-Posttraumatic-Stress-Disorder-PTSD-Claims-Related-to-Personal-Trauma?query=Section D. Claims for Service Connection (SC) for Posttraumatic Stress Disorder (PTSD)
    [19] ptsd C&P Results- May I get an opinion please?
    [20] How The Va Rates Ptsd Claims

    Tbird
    The Law of Veterans’ Benefits 2008-2010: Significant Developments, Trends, and a Glimpse into the Future

     

    The Law of Veterans’ Benefits 2008-2010: Significant Developments, Trends, and a Glimpse into the Future
    Download PDF
    Introduction
    I.            The Significant Developments (2008-2010)
     
    A.                Timeliness of Appeals (Administrative and Judicial) and Other Jurisdictional Matters
     
    i.                                     The Demise of Equitable Tolling
    ii.                                    Abating the Finality of Board Decisions
    iii.                                  Other Matters
     
    B.               What Constitutes a “Claim” Under Relevant Law?
     
    C.                The Department’s Notice-Related Duties
     
    i.                                     The Supreme Court Speaks
    ii.                                    Other Significant Notice-Related Matters
     
    D.              The Department’s Duties to Assist Claimants
     
    E.               Matters Related to Medical Examinations and Evidence
     
    F.                Ratings-Related Decisions
     
    G.              Matters Concerning Clear and Unmistakable Error (and Sympathetically Reading Claims)
     
    H.               Matters Concerning Attorneys’ Fees
     
    i.                                     EAJA Matters
    ii.                                    Non-EAJA Matters
     
    I.                 Due Process of Law
     
    J.                Structural Matters
     
    i.                                     The General Nature of the VA Adjudicatory System
    ii.                                   Relations Between the Veterans Court and the Secretary
    iii.                                 The Board’s Authority
    iv.                                Appellate Jurisdiction of the Supreme Court and the Federal Circuit
     
    K.              Miscellaneous Matters
     
    II.     PAST TRENDS AND A GLIMPSE OF THE FUTURE
     
    A.               Trends/Connections
     
    i.                                      “This Stuff is Hard.”
    ii.                                    The Veterans Court’s Instructional Role
    iii.                                   Questions about the Nature of the Administrative System
    iv.                                   The Role of Lawyers in the System
     
    B.               Future Developments
     
    CONCLUSION
    the-law-of-veterans-benefits-2008-2010-significant-developments-trends-and-a-glimpse-into-the-future.pdf

    Tbird
    VA service representatives can answer questions about benefits eligibility and application procedures. Contact the nearest VA benefits office at 1-800-827-1000 from any United States and Puerto Rico location. VA facilities are also listed in the federal government section of telephone directories under “Veterans Affairs.” Included Forms (Always check here VA Forms first make sure you have the most recent copy of the form:
    Find VA Forms Here
    Common Forms

    Application For United States Flag For Burial Purposes Claim For Government Medallion For Placement In A Private Cemetery Claim For Standard Government Headstone Or Marker –  How To Complete Va Form 40-1330, Application For Standard Government Headstone Or Marker Claim For One Sum Payment Government Life Insurance Claim For Monthly Payments United States Government Life Insurance (USGLI) Claim For Monthly Payments National Service Life Insurance Section 301 of Public Law 109-461 adds a new category to the definition of “eligible person” for DEA benefits. 
    DEPENDENT OR SURVIVOR The Veterans Benefits Administration offers a variety of benefits and services to spouses, children, and parents of Service members and Veterans who are deceased or totally and permanently disabled by a service-connected disability. One of the more difficult tasks a survivor faces after the death of the veteran is completing the numerous claims forms for VA survivors’ benefits. The anxiety and fear of the unknown – who to call, what to do, or where to go for help – can be an unpleasant experience. Here are some basic quick tips to help ease the burden and ensure you have the necessary details for filing a claim.
    Documents Needed
    The veteran’s VA claim number or Social Security number The veteran’s death certificate Government life insurance policy A copy of all marriage certificates and divorce decrees (if any) A copy of each child’s birth certificate (or adoption order) Veteran’s birth certificate to determine parents’ benefits Where to Get Help
    Survivors and Dependents Benefits — Death After Active Service
    Secure electronic messaging IRIS Contacting the VA
    Federal Benefits for Veterans and Dependents
    VA service representatives can answer questions about benefits eligibility and application procedures. Contact the nearest VA benefits office at 1-800-827-1000 from any United States and Puerto Rico location. VA facilities also are listed in the federal government section of telephone directories under “Veterans Affairs.”
    Read through HadIt.com’s Forum on DIC – Dependency and Indemnity Compensation
    Bereavement Counseling at Veterans Centers – The Department of Veteran Affairs (VA) offers bereavement counseling to parents, spouses, and children of Armed Forces personnel who died in the service of their country.  Also eligible are family members of reservists and National Guardsmen who die while on duty.
    Find out about The Veterans Center. (Personally, I think they have been an oasis in a crazy maze. – (Tbird Founder HadIt.com Veteran To Veteran LLC)
    What to Do When Someone Dies: A Step-by-Step Guide via Rocket Lawyer
    There are many legal matters surrounding the death of a person. Some of these matters can be dealt with before death, others after death. This section looks at the reading of the will and disposition of the dying person’s property and assets during probate. It also underscores the importance of Advanced Care Planning, Advance Care Directives, Living Wills, Power of Attorney, and Living Trusts.

    Tbird
    Won Your VA Claim?
    This reference will help you calculate your retroactive pay.
    For Current VA Disability Compensation Rates, Click Here
    VA Disability rates listed below are used to calculate your retroactive pay once you win your claim. For example, if you were awarded 50% from 1997 to the present, you will be paid at the 50% rate for the corresponding years.   VA disability compensation (pay) offers a monthly tax-free payment to Veterans who got sick or injured while serving in the military and to Veterans whose service made an existing condition worse. You may qualify for VA disability benefits for physical conditions (like a chronic illness or injury) and mental health conditions (like PTSD) that developed before, during, or after service. Find out how to apply for and manage the Veteran’s disability benefits you’ve earned.   Source of Data: Veterans Affairs Compensation and Pension Benefits Website Quick Reference
    VA Disability Rates for Compensation Special Monthly Compensation (SMC) Current Rates Dependency Indemnity Compensation (DIC) Current Rates Parents DIC Current Rates Automobile Allowance, Clothing Allowance, and Medal of Honor Rates Birth Defects (Spina Bifida, Children of Women Vietnam Veterans) Rates You may wonder how the VA decides if I’m 70% or 30%. There are many reasons, but let’s start with the basics and move on from there.   VA Claims Are Ruled by Law 38CFR.   CFR 38 or Title 38 is how the USC 38 is interpreted. Then, the VA has manuals that tell the VA how to apply the law in CFR 38.   FYI: C.F.R. Code of Federal Regulations - The C.F.R. is the interpretation of the law. VA Manuals - Manuals interpret the law from the Code of Federal Regulations and tell the VA how to apply it. U.S.C. - The United States Code is the law, and the U.S.C. is the government’s official code copy.   First, your disability is listed in the law 38CFR4 Schedule for Rating Disabilities. This document is dry reading but read it anyway. It will list your disability/diagnosis and tell you what symptoms equal what percentage.   Now, the compensation and pension exam doctor will examine you and make notes indicating your disability and limitations. Then, a VA rater will look at the doctor’s results, look at the evidence, look at your claim (contentions) look at the law and then make a decision. So, the moral of the story is to spend some time looking at the 38CFR4 Schedule for Rating Disabilities. This will provide valuable information on how the VA views and rates your disability.   While I’m here, check out the side effects of any medications you are on for your service-connected condition. Those can be claimed as secondary to your service-connected disability. You are your best advocate. For Current VA Disability Compensation Rates, Click Here
    Past VA Disability rates: Calculate your retroactive pay after you win.
    The research was unable to find rates for 1983 and 1999     Effective 10% 20% 30% 40% 50% Effective 5/1/74 $32 $59 $89 $122 $171 5/1/74 8/1/75 $35 $65 $98 $134 $188 8/1/75 10/1/76 $38 $70 $106 $145 $203 10/1/76 10/1/77 $41 $75 $113 $155 $216 10/1/77 10/1/78 $44 $80 $121 $166 $232 10/1/78 10/1/79 $48 $88 $133 $182 $255 10/1/79 10/1/80 $54 $99 $150 $206 $291 10/1/80 10/1/81 $58 $107 $162 $232 $328 10/1/81 10/1/82 $62 $114 $173 $249 $352 10/1/82               4/1/84 $64 $118 $179 $258 $364 4/1/84 12/1/84 $66 $122 $185 $266 $376 12/1/84 12/1/85 $68 $126 $191 $274 $388 12/1/85 12/1/86 $69 $128 $194 $278 $394 12/1/86 12/1/87 $71 $133 $202 $289 $410 12/1/87 12/1/88 $73 $138 $210 $300 $426 12/1/88 12/1/89 $76 $144 $220 $314 $446 12/1/89               1/1/91 $80 $151 $231 $330 $470 1/1/91 12/1/91 $83 $157 $240 $342 $487 12/1/91 12/1/92 $85 $162 $247 $352 $502 12/1/92 12/1/93 $87 $166 $253 $361 $515 12/1/93 12/1/94 $89 $170 $260 $371 $529 12/1/94 12/1/95 $91 $174 $266 $380 $542 12/1/95 12/1/96 $94 $179 $274 $391 $558 12/1/96 12/1/97 $95 $182 $279 $399 $569 12/1/97 12/1/98 $96 $184 $282 $404 $576 12/1/98 12/1/99 $98 $188 $288 $413 $589 12/1/99 12/1/00 $101 $194 $298 $427 $609 12/1/00 12/1/01 $103 $199 $306 $439 $625 12/1/01 12/2/02 $104 $201 $310 $445 $633 12/1/02 12/1/03 $106 $205 $316 $454 $646 12/1/03 12/1/04 $108 $210 $324 $466 $663 12/1/04               Effective 60% 70% 80% 90% 100% Effective 5/1/74 $211 $250 $289 $325 $584 5/1/74 8/1/75 $236 $280 $324 $364 $665 8/1/75 10/1/76 $255 $302 $350 $393 $707 10/1/76 10/1/77 $272 $322 $373 $419 $754 10/1/77 10/1/78 $292 $346 $400 $450 $809 10/1/78 10/1/79 $321 $380 $440 $495 $889 10/1/79 10/1/80 $367 $434 $503 $566 $1,016 10/1/80 10/1/81 $413 $521 $604 $679 $1,130 10/1/81 10/1/82 $443 $559 $648 $729 $1,213 10/1/82               4/1/84 $459 $579 $671 $755 $1,255 4/1/84 12/1/84 $474 $598 $692 $779 $1,295 12/1/84 12/1/85 $489 $617 $713 $803 $1,335 12/1/85 12/1/86 $496 $626 $724 $815 $1,355 12/1/86 12/1/87 $516 $652 $754 $849 $1,411 12/1/87 12/1/88 $537 $678 $784 $883 $1,468 12/1/88 12/1/89 $562 $710 $821 $925 $1,537 12/1/89               1/1/91 $592 $748 $865 $974 $1,620 1/1/91 12/1/91 $614 $776 $897 $1,010 $1,680 12/1/91 12/1/92 $632 $799 $924 $1,040 $1,730 12/1/92 12/1/93 $648 $819 $948 $1,067 $1,774 12/1/93 12/1/94 $666 $841 $974 $1,096 $1,823 12/1/94 12/1/95 $683 $862 $999 $1,124 $1,870 12/1/95 12/1/96 $703 $887 $1,028 $1,157 $1,924 12/1/96 12/1/97 $717 $905 $1,049 $1,181 $1,964 12/1/97 12/1/98 $726 $916 $1,062 $1,196 $1,989 12/1/98 12/1/99 $743 $937 $1,087 $1,224 $2,036 12/1/99 12/1/00 $769 $969 $1,125 $1,266 $2,107 12/1/00 12/1/01 $790 $995 $1,155 $1,299 $2,163 12/1/01 12/2/02 $801 $1,008 $1,171 $1,317 $2,193 12/1/02 12/1/03 $817 $1,029 $1,195 $1,344 $2,239 12/1/03 12/1/04 $839 $1,056 $1,227 $1,380 $2,299 12/1/04   Past VA Disability Compensation Rates
     
    Historical Rate Tables source: VA.gov
    Current VA Compensation Rates 2023 rates (effective December 1, 2022) 2022 rates (effective December 1, 2021) 2021 rates (effective December 1, 2020) 2020 rates (effective December 1, 2019) 2019 rates (effective December 1, 2018) 2018 rates (effective December 1, 2018) 2017 rates (effective December 1, 2017) 2016 rates (effective December 1, 2016) 2015 rates (effective December 1, 2015) – not found 2014 rates (effective December 1, 2014) 2013 rates (effective December 1, 2013) 2012 rates (effective December 1, 2012) 2011 rates (effective December 1, 2011) 2010 rates (effective December 1, 2010) – not found 2009 rates (effective December 1, 2009) 2008 rates (effective December 1, 2008) 2007 rates (effective December 1, 2007) 2006 rates (effective December 1, 2006) 2005 rates (effective December 1, 2005) 2004 rates (effective December 1, 2004 2003 rates(effective December 1, 2003 2002 rates (effective December 1, 2002 2001 rates (effective December 1, 2001 2000 rates (effective December 1, 2000 1999 rates (effective December 1, 1999

    Tbird
    Getting it straight the difference between Memorial Day and Veterans Day.   Memorial Day: Celebrated on the last Monday in May. Memorial Day is the holiday set aside to pay tribute to those who died while serving in the military.   Veterans Day: This federal holiday falls on November 11 and is designated as a day to honor all who have served in the military.   On May 30, 1868, Maj. Gen. John A. Logan proclaimed Decoration Day to be a nationwide commemoration of the Civil War's fallen soldiers.  Memorial Day History
    Three years after the conclusion of the Civil War, on May 5, 1868, Maj. Gen. John A. Logan declared that Decoration Day should be observed annually on May 30th as a way for all Americans to honor fallen soldiers by decorating their graves with flowers. It is speculated that this date was chosen because flowers would be flourishing throughout the nation at this time of year – providing a beautiful tribute to those who have heroically served our country. Decoration Day will go on to be called Memorial Day. On May 30, 1868, Maj. Gen. John A. Logan proclaimed that Decoration Day (Memorial Day) should be observed as a nationwide commemoration of fallen soldiers of the Civil War. The first major event was held at Arlington National Cemetery, just outside Washington, D.C., where family and friends adorned grave sites with flowers to honor the memory of their lost loved ones on this special day. To ensure that blooms were abundant throughout the country on that same day each year, Logan chose Decoration Day (Memorial Day) to take place annually on May 30th — a date which has since been maintained in recognition of those who gave their lives during our nation’s greatest struggle. The solemn proceedings held at the formerly-owned residence of General Robert E. Lee, Arlington mansion, were presided over by esteemed Washington officials, including Generals Ulysses S. Grant and his wife. After several speeches, some of the children from Soldiers’ and Sailors’ Orphan Home, accompanied by members of The Grand Army Of The Republic, marched through the cemetery to pay their respects with flower offerings and prayerful hymns dedicated to both Union and Confederate graves.

    In recognition of the heroic sacrifices made by our fallen heroes, in December 2000, the United States Congress and President passed ‘The National Moment of Remembrance Act’ (P.L. 106-579). The White House Commission on the National Moment of Remembrance was established to promote honoring this day as well as Memorial Day across the nation–as an opportunity for Americans to show their gratitude for the freedom and opportunity that these sacrifices provided us. Local Observances Claim To Be First
    Local springtime tributes to the Civil War dead already had been held in various places. One of the first occurred in Columbus, Miss., on April 25, 1866, when a group of women visited a cemetery to decorate the graves of Confederate soldiers who had fallen in battle at Shiloh. Nearby were the graves of Union soldiers, neglected because they were the enemy. Disturbed at the sight of the bare graves, the women also placed some of their flowers on those graves. Approximately 25 places have been named in connection with the origin of Memorial Day, many of them in the South, where most of the war dead were buried. Today, cities in the North and the South claim to be the birthplace of Memorial Day in 1866. Both Macon and Columbus, Ga., claim the title, as well as Richmond, Va. The village of Boalsburg, Pa., claims it began there two years earlier. A stone in a Carbondale, Ill., cemetery says that the first Decoration Day ceremony took place there on April 29, 1866. Carbondale was the wartime home of Gen. Logan. Official Birthplace Declared
    In 1966, Congress and President Lyndon Johnson declared Waterloo, N.Y., the “birthplace” of Memorial Day. A ceremony on May 5, 1866, honored local veterans who had fought in the Civil War. Businesses closed, and residents flew flags at half-staff. Supporters of Waterloo’s claim say earlier observances in other places were informal, not community-wide or one-time events. By the end of the 19th century, Memorial Day ceremonies were held on May 30 throughout the nation. State legislatures passed proclamations designating the day, and the Army and Navy adopted regulations for proper observance at their facilities. However, it was not until after World War I that the day was expanded to honor those who have died in all American wars. In 1971, Memorial Day was declared a national holiday by an act of Congress, though it is still often called Decoration Day. It was then placed on the last Monday in May, as were some other federal holidays. Some States Have Confederate Observances
    Many Southern states also have their own days for honoring the Confederate dead. Mississippi celebrates Confederate Memorial Day on the last Monday of April, Alabama on the fourth Monday of April, and Georgia on April 26. North and South Carolina observed it on May 10, Louisiana on June 3, and Tennessee called that date Confederate Decoration Day. Texas celebrates Confederate Heroes Day on January 19, and Virginia calls the last Monday in May Confederate Memorial Day. Gen. Logan’s order for his posts to decorate graves in 1868 “with the choicest flowers of springtime” urged: “We should guard their graves with sacred vigilance. … Let pleasant paths invite reverent visitors and fond mourners to come and go. Let no neglect, no ravages of time, testify to the present or to the coming generations that we have forgotten as a people the cost of a free and undivided republic.” The crowd attending the first Memorial Day ceremony at Arlington National Cemetery was approximately the same size as those attending today’s observance, about 5,000 people. Then, small American flags were placed on each grave — a tradition followed at many national cemeteries today. In recent years, the custom has grown in many families to decorate the graves of all. Memorial Day Resources
    History of Memorial Day National Cemetery Administration Displaying the Flag at Half-staff General Flag Display Guidelines Folding the Flag Poppy Flower Taps Related: Get it straight: The difference between Memorial Day and Veterans Day

    Tbird
    DATE: 02-13-91
    CITATION: VAOPGCPREC 04-91
    Vet. Aff. Op. Gen. Couns. Prec. 04-91
    TEXT:
    Failure to Submit to Medical Examination--Insistence on the Presence of an Attorney and Use of a Recording Device
    QUESTION PRESENTED:
    Has a veteran failed to report for a scheduled examination for purposes of 38 C.F.R. § 3.655 if he or she appears but refuses to be examined unless accompanied by a private attorney and allowed to record the evaluation?
    This is in response to your request for an opinion concerning the possible "right" of Department of Veterans Affairs' (VA) beneficiaries to be accompanied by an attorney during scheduled VA medical examinations. The veteran appeared for a scheduled psychiatric examination but refused to be examined unless the veteran's attorney was present and the veteran was permitted to use a tape recorder during the evaluation. Section 3.329 of title 38, Code of Federal Regulations, provides that every person applying for or in receipt of compensation or pension shall submit to examinations when required by VA under proper authority. Section 3.655 of that title provides for discontinuance of benefits when a veteran fails "without adequate reason" to report for examination. Determination of the facts surrounding a claimant's failure to report is a factual matter which rests with VA adjudication and appellate personnel. See 38 C.F.R. §§ 3.100 and 19.111. This opinion addresses the legal issue of whether denial of assistance of counsel and use of a recording device in connection with 
      A "right to counsel" in administrative proceedings does not exist unless it can be found in some constitutional clause, statutory measure, or regulation. Barker v. Hardway, 283 F.Supp. 228 (S.D.W.Va.), aff'd, 399 F.2d 638 (4th Cir.1968), cert. denied, 394 U.S. 905 (1969); Suess v. Pugh, 245 F.Supp. 661 (N.D.W.Va.1965) (proceeding before Professional Standards Board of Veterans Administration). Turning first to the United States Constitution, we note that the Sixth Amendment provides for
    the assistance of counsel " in all criminal prosecutions." It has no bearing on the question of assistance of counsel in civil matters before administrative agencies. Hannah v. Larche, 363 U.S. 420 (1960); Smith v. United States, 250 F.Supp. 803 (D.N.J.1966), appeal dismissed, 377 F.2d 739 (3d Cir.1967); Suess, 245 F.Supp. at 665. The Fifth Amendment is less specific than the Sixth and contains a very powerful guarantee, requiring that one not be "deprived of life, liberty, or property, without due process of law." U.S. Const. amendment V. However, in interpreting that clause, the courts have been reluctant to find that "due process" includes a right to representation by counsel in administrative activities of an investigatory or preliminary nature. E.g., In Re Groban, 352 U.S. 330, 335 (1957) (no right to assistance of counsel in testifying at an investigatory proceeding); Bowles v. Baer, 142 F.2d 787, 789 (7th Cir.1944) (investigations held in private, without representation by counsel-- held no provision of the Constitution required public hearing); see also Hannah, 363 U.S. at 440-51 (no right to cross-examine witnesses before commission performing investigative function). See generally Torras v. Stradley, 103 F.Supp. 737, 739 (N.D.Ga.1951) (noting cases recognizing distinction between fact-finding functions and those involving determination of legal rights). 
      In applying this case law to the situation under consideration, we note that medical examinations conducted by VA are investigative in nature. Within VA, there is a clear delineation between the role of the Veterans Health Services and Research Administration (VHS & RA) and that of the Veterans Benefits Administration (VBA). Compare the Department of Veterans Affairs Act, Pub.L. No. 100-527, § 7, 102 Stat. 2635, 2640 (1988), with 38 U.S.C. § 4101(a). As set out in 38 C.F.R. ss 2.67 and 3.100(a), authority is delegated to VBA personnel to make findings and decisions as to entitlement of claimants to monetary benefits under laws administered by VA. Thus, even though medical examinations conducted by VHS & RA provide important information relevant to claims for benefits, the examinations are not conducted by the same individuals who participate in benefit decisions, and the reports of those examinations represent only one piece of information which will be considered by adjudication personnel in determining eligibility for benefits. Given the nature of the examination function, there is thus, in our view, no constitutional right to the presence of an attorney at a VA medical examination.
      With regard to pertinent statutory provisions, assistance of counsel for persons appearing before administrative agencies is addressed in the Administrative Procedure Act (APA) in the first two sentences of 5 U.S.C. § 555(b). The first sentence provides that " a person compelled to appear in person before an agency or representative thereof is entitled to be accompanied, represented, and advised by counsel or, if permitted by the agency, by other qualified representative." The second sentence adds that " a party is entitled to appear in person or by or with counsel or other duly qualified representative in an agency proceeding." The legislative history of the predecessor to this provision indicates that the second sentence was intended to supplement the first sentence by providing a rule to govern situations where appearance of an individual is not compelled. 92 Cong.Rec. 2156 (1946) (statement of Senator McCarran). Since the veteran in this case was required to appear for examination at the risk of termination of benefits, we believe that only the first sentence of section 555(b) is for consideration here.
      The predecessor to section 555 was described in congressional committee reports as prescribing "the rights of private parties in a number of miscellaneous respects which may be incidental to rulemaking, adjudication, or the exercise of any other agency authority." H.R.Rep. No. 1980, 79th Cong., 2d Sess. 18, reprinted in 1946 U.S.Code Cong.Service 1195, 1206; S.Rep. No. 752, 79th Cong., 1st Sess. 8 (1945). The reference to "any other agency authority" suggests a broad application of the section. Further, a section-by-section analysis in the House report on the measure stated broadly " the section is a statement of statutory and mandatory right of interested persons to appear themselves or through or with counsel before any agency in connection with any function, matter, or process whether formal, informal, public, or private." H.R.Rep. No. 1980, supra, at 31. Given that Congress intended the provision to apply to a broad range of agency functions, the question remains as to whether Congress intended that any limitations apply with respect to the scope of representation activities. This issue was addressed in House floor debate on the measure by Congressman Walter of the Committee on the Judiciary, who stated " t he representation of counsel contemplated by the bill means full representation as the term is understood in the courts of law." 92 Cong.Rec. 5652 (1946). Thus, it appears that the scope of representation was intended to be consistent with that recognized in judicial proceedings. A review of analogous situations in judicial proceedings reveals that medical examinations in both adversarial and nonadversarial settings are almost uniformly conducted without the presence of attorneys. For example, parties do not have the right, under discovery rules, to have an attorney present during mental or physical examinations conducted by physicians pursuant to Rule 35(a) of the Federal Rules of Civil Procedure. E.g., Wheat v. Biesecker, 125 F.R.D. 479 (N.D.Ind.1989) (by attending the examination the attorney might have to choose between participating at trial as a litigator of as a witness); Cline v. Firestone Tire & Rubber Co., 118 F.R.D. 588 (S.D.W.Va.1988) (nature of psychological examination particularly dictates against allowing the attorney to be present).
    Courts considering the issue of assistance of counsel in administrative proceedings have frequently ignored the possible applicability of the APA. Wasson v. Trowbridge, 382 F.2d 807, 812 (2d Cir.1967) (APA not mentioned in discussion of right of military academy cadet to counsel during expulsion hearing); Schawartzberg v. United States Board of Parole, 399 F.2d 297 (10th Cir.1968) (upheld regulation excluding counsel from parole hearings without mentioning APA). In F.C.C. v. Schreiber, 329 F.2d 517 (9th Cir.1964), modified on other grounds, 381 U.S. 279 (1965), the Ninth Circuit held that application of the "right to counsel" as provided in the APA varies with the circumstances of the case. In its turn, the Supreme Court noted, in F.C.C. v. Schreiber, 381 U.S. 279, 290 (1965), that administrative agencies should be free to fashion their own procedures and pursue methods of inquiry capable of permitting them to discharge their "multitudinous duties."
    Significantly, it has been held that, under the Social Security statutes, a claimant for Social Security benefits may not insist on the presence of an attorney during disability examinations conducted by the Department of Health, Education, and Welfare. Neumerski v. Califano, 513 F.Supp. 1011 (E.D.Pa.1981). The reasoning in Neumerski is illuminating. The court rejected the plaintiff's argument that the presence of counsel was justified because the proceedings had been given an adversarial taint by the agency's request for further examination. Consistent with the legislative history of the APA the court pointed out that attorneys have no right to be present at medical or psychological examinations in truly adversarial civil litigation. 513 F.Supp. at 1016. Quoting from Brandenberg v. El Al Airlines, 79 F.R.D. 543, 546 (S.D.N.Y.1978), which labeled as "frivolous" the claim that an attorney should be present at such an examination, the court indicated that "this is especially true in psychological examinations which depend on 'unimpeded one-on-one communication between doctor and patient.' " 513 F.Supp. at 1017. In addition to the concern that the presence of an attorney would undermine the communication process of an examination, courts have also recognized that there is very little an attorney can contribute in certain settings. Cf. Cruz v. Skelton, 543 F.2d 86, 96 (5th Cir.1976), cert. denied, 433 U.S. 911 (1977) (parole board hearing does "not present a forum in which the special analytical, research or forensic skills of the lawyer are necessary, nor even likely to prove particularly helpful"). In light of these considerations, we cannot conclude that the APA provides a right to be represented by counsel at the examination itself.
    Turning to relevant VA statutes and regulations, we note that there is no provision in title 38, United States Code, or in VA regulations, specifically granting a claimant the right to have his or her attorney, or other representative, present during a medical evaluation. Further, the involvement of claimants' representatives in VA proceedings is clearly not without limits. For example, while the provisions of 38 C.F.R. § 3.103(e) state that claimants "are entitled to representation of their choice at every stage in the prosecution of a claim," this provision is specifically made subject to the general provisions governing representation by attorneys and 
    other representatives of claimants and beneficiaries in the "preparation, presentation, and prosecution" of matters affecting veterans' benefits. See 38 U.S.C. § 3404(a); 38 C.F.R. § 14.626, et seq. See also 38 U.S.C. § 4005(a) (representation rights to be accorded in administrative appeals pursuant to VA regulations); 38 C.F.R. § 19.150 (full right to representation by "authorized" individuals in all stages of an appeal). Even assuming that a regularly scheduled medical examination represents a "stage in the prosecution of a claim" for purposes of section 3.103(e), the scope of representation must be considered in light of the generally recognized limitations on the role of attorneys in judicial and administrative proceedings. Such limitations, as discussed above, generally preclude the presence of attorneys at medical examinations, particularly those of a psychiatric nature. Thus, the provisions of Title 38 of the United States Code and the Code of Federal Regulations cannot be read to grant attorneys authority to participate in such activities. In view of the foregoing, we conclude that a veteran does not have a right to be accompanied by counsel at a scheduled VA examination and cannot justifiably refuse to submit to examination on the basis of denial of counsel.
    Similarly, there is no constitutional, statutory, or regulatory requirement that would allow beneficiaries to use recording devices during VA medical examinations. Again, it must be noted that the examinations at issue are investigative and preliminary in nature. Further, while case law on the subject is not extensive, it supports the conclusion that one has no "right" to record such activities. See, e.g., Baer, 142 F.2d at 788-89 (no constitutional infirmity where court reporter ordered to leave investigative-hearing room); In Re Neil, 209 F.Supp. 76, 77 (S.D.W.Va.1962) (APA does not extend to any party the right to bring a stenographer to report the proceedings at an agency hearing); Torras, 103 F.Supp. at 740 (witness in investigative proceeding did not have right under the APA to the presence of a personal stenographer). As discussed above with respect to the presence of an attorney, use of a recording device would threaten to impede free communication between the examinee and the examining physician. VA regulations do not authorize the use of recording devices at medical examinations, and we find that their use is not otherwise required by law. Thus, denial of the use of such a device would not be an adequate reason to refuse to submit to examination.
    HELD:
    Neither the Constitution, the Administrative Procedure Act, nor VA statutes and regulations provide a right to counsel at medical examinations scheduled by VA for evaluation of beneficiaries, including psychiatric evaluation. As, under the relevant constitutional, statutory, and regulatory provisions, there is no "right" to be accompanied by an attorney to this type of agency activity, refusal to participate unless accompanied by an attorney may be considered a failure to report for purposes of VA regulations at 38 C.F.R. § 3.655 providing for discontinuance of benefits for failure to report for examination. Similarly, a beneficiary may not insist on using a recording device at a VA medical examination, and refusal to participate due to absence of such a device may be considered a failure to report for purposes of VA regulations governing termination of benefits.
    VETERANS ADMINISTRATION GENERAL COUNSEL Vet. Aff. Op. Gen. Couns. Prec. 04-91
     
     

    Tbird
    To receive compensation from the VA, a veteran’s disability must be service-connected. There are five ways to establish a service connection:

    Direct service connection is for a disease or injury that first began in service or was caused by active military service. The burden of proof falls on the veteran to show that their current disability is directly related to their service. This is most easily proven by using military and service medical records as evidence that the condition was diagnosed in service or that symptoms of the condition began in service.  However, in the absence of service records, other evidence can be used to make a case for direct service connection. References 38 CFR 3.304 Direct service connection; wartime and peacetime 38 CFR 3.305 Direct service connection; peacetime service before January 1, 1947  

    Service connection through aggravation is when a disability the veteran had before going into service gets worse because of their service. In other words, the veteran’s service caused the condition to progress faster than it should have naturally.  All veterans undergo an entrance medical examination before entering active duty to establish the veteran’s health before service. If the veteran has pre-existing conditions, the medical examiner should have noted them on the Report of Medical Examination. A claim for service connection through aggravation is best supported by a medical opinion written by a doctor showing that service aggravated the condition beyond the natural progression. Suppose the pre-existing condition does not appear on the Report of Medical Examination. In that case, the veteran is assumed to be in good health and sound of mind when entering service, called Presumption of Soundness. References 38 CFR 3.306 Aggravation of preservice disability

    By law, the VA has established that veterans diagnosed with certain diseases within a specific period of time after service don’t have to prove that their disease is service-connected; it is presumptively service-connected.
    A full list of presumptively service-connected diseases and circumstances can be found here, but the most common circumstances include: Diagnosis of specific diseases within one year of being discharged from active duty Vietnam Veterans exposure to herbicides, such as Agent Orange Gulf War Veterans Former prisoner-of-war Exposure to contaminated water at Camp Lejeune between August 1, 1953, through December 31, 1987, for a minimum of 30 days (cumulative) References 38 CFR 3.307 Presumptive service connection for chronic, tropical, or prisoner-of-war related disease, disease associated with exposure to certain herbicide agents, or disease associated with exposure to contaminants in the water supply at Camp Lejeune; wartime and service on or after January 1, 1947 38 CFR 3.308 Presumptive service connection; peacetime service before January 1, 1947 38 CFR 3.309 Disease subject to presumptive service connection  

     This is granted if a service-connected disability aggravates a non-service-connected disability worse. The more common type of secondary service connection is where a service-connected disability causes another disability.   An example of this would be a case of a veteran’s diabetes causing his/her peripheral neuropathy. Another example would be a veteran’s service-connected back ailment or injury causing radiculopathy or the same back ailment or injury leading to knee problems. References 38 CFR 3.310 Disabilities that are proximately due to, or aggravated by, service-connected disease or injury

    Oftentimes, an injury or aggravation can be caused by poor care and treatment by VA hospitalization, VA medical or surgical treatment, VA exams, or VA vocational rehabilitation, and can be service-connected. If a veteran dies due to VA health care, eligible survivors can receive certain VA benefits. References 38 CFR 3.154 Injury due to hospital treatment, etc In most or all of the ways a veteran can receive service-connected disability benefits, it is vital to the claimant's success to have a physician’s medical opinion that “it is more likely than not ” that the injury or illness was incurred or aggravated during active service.
    Source: Republished from Hill and Ponton

    Tbird
    VA benefits are available to compensate a veteran at the 100% level if he or she is not able to work because of service-connected conditions even without a 100% schedular rating. This benefit is called “total disability on the basis of individual unemployability”, (“TDIU”), or sometimes “individual unemployability, ” (“IU”).
    Source: TDIU or Individual Unemployability Source: Helpdesk.AskVetsFirst.org
    In order to qualify for TDIU benefits, a claimant must meet the following requirements:
    If the claimant has only one service-connected condition, that condition must be schedular rated at least 60% or more; If the claimant has two or more service-connected conditions, at least one of those conditions must be rated at 40% or more, and the veteran’s combined disability rating must be 70% or more; and In either case, the veteran must be unemployable because of his or her service-connected conditions.  To establish “unemployability” or “inability to substantially maintain gainful employment”, the Veteran must provide:
    evidence of unemployment due to service-connected conditions, employment history records for example, and medical evidence that the veteran’s service-connected condition renders him or her totally disabled and unemployable, generally a doctor’s opinion letter. Having a paying job does not automatically disqualify a claimant from a TDIU award.  If the wages are considered “marginal” (low paying) or “sheltered” (protected from usual requirements) employment are exceptions to the TDIU qualification requirements. 
    Examples of employment that are allowed under TIDU:
    A job that pays substantially less than the prevailing poverty level, A job that is protected from requirements that someone else in that position would be expected to satisfy, or A job working for a friend or relative, may not be “substantially gainful employment.” Although it is always better to submit a specific claim for TDIU.  The VA has a duty to look for potential TDIU claims based on the evidence in the claimant’s VA claims file, known as a “C-file”. The VA is required to review the claims for TIDU, even if not specifically requested by the Veteran, because entitlement to TDIU is part of every claim for disability compensation. Upon reviewing the claim, the VA determines if TDIU is an appropriate award for the claim.  Evidence of unemployability can be submitted after an initial decision denying TDIU, if while a claim for schedular benefits is still being processed.
    As with most VA benefits, TDIU is not a permanent benefit. The VA can require a claimant undergo periodic medical examinations to confirm that the claimant remains unable to work due to a service-connected condition. And, as with all VA examinations, a failure to report for a scheduled examination can result in suspension or termination of a TDIU benefit.
    In addition, since a TDIU award is also based on “unemployability,” the VA can periodically request employment information from a claimant receiving TDIU benefits. The VA will also cross check employment earnings with the IRS.  
    The TDIU rating could be terminated and the claimant could be liable to repay VA for the TDIU benefits paid since that employment began, if:
    the VA becomes aware that a claimant is working at a job that is not marginal or sheltered, A claimant must also be careful in performing volunteer work because the nature and time spent at unpaid work shows that a claimant could be employed and is no longer unemployable.   If a Veteran is determined to be employale, the TDIU award can and will probably be revoked. When a TDIU rating is revoked, a claimant’s benefits go back to the amount of compensation payable under the scheduler rating and the VA can make the Veteran repay the TDIU award.
    Additional Information:
    Although it is best to make an explicit claim for TDIU if a claimant believes he or she is eligible, it is no longer required.  Potential entitlement to TDIU is part of every claim for disability compensation.  See Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009) (TDIU “is part and parcel of the determination of the initial rating for [a] disability”).  It is now well established that the Board must consider “whether a TDIU award is warranted whenever a pro se claimant seeks a higher disability rating and submits cogent evidence of unemployability, regardless of whether he states specifically that he is seeking TDIU benefits.”  Comer v. Peake, 552 F.3d 1362, 1366 (Fed. Cir. 2009) (citing Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001)); see also Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (same).  “[A] request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as a part of the initial adjudication of a claim or . . . as a part of a claim for increased compensation.”  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); see also Floyd v. Brown, 9 Vet. App. 88, 96 (1996) (the question of an extraschedular rating is a component of the appellant’s claim for an increased rating).  A request for a higher disability rating and evidence indicating that the claimant’s ability to work was “significantly impaired” by his or her service connected conditions reasonably raises the issue of entitlement to TDIU as an alternative basis for increased compensation.  Id.
    VA regulations provide two methods by which TDIU may be granted.  Under the first, TDIU may be assigned to a claimant who is “unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities” provided that he has received a disability rating of 60% or greater, or, if he is service-connected for two or more disabilities, at least one of those disabilities has been assigned a disability rating greater than 40%, and the combined disability rating for all disorders is at least 70%.  38 C.F.R. § 4.16(a).  If the claimant does not meet these schedular TDIU requirements, a TDIU rating may still be obtained by referral to the director of Compensation and Pension Service for extraschedular consideration when the claimant is unemployable by reason of service-connected disabilities.  38 C.F.R. § 4.16(b). 
    38 C.F.R. section 3.321(b)(1) provides an alternative method of referring a case for extraschedular consideration when a claimant demonstrates an “exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of regular schedular standards.”  Extraschedular consideration under section 3.321(b) is not the same as TDIU under section 4.16(b) because sections 4.16(b) and 3.321(b)(1) are not interchangeable.  See Kellar v. Brown, 6 Vet. App. 157, 162 (1994) (“the effect of a service-connected disability appears to be measured differently” by the two regulations).  Section 4.16(b) requires evidence of unemployability, while § 3.321(b)(1) requires only “marked interference with employment,” which is a somewhat less severe standard.  See Thun v. Peake, 22 Vet. App. 111, 117 (2008); see also Stanton v. Brown, 5 Vet. App. 563, 564-70 (issue of extraschedular rating is separate from issue of TDIU rating).  In other words, a claimant need not demonstrate total unemployability to obtain a section 3.321(b) extraschedular disability rating.
    The term “substantially gainful occupation” is not defined by VA regulation; however, the Court has held that the term refers to, at a minimum, the ability to earn “a living wage.”  Bowling v. Principi, 15 Vet. App. 1, 7 (2001); Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991).  The Court has also held that a person is engaged in a “substantially gainful occupation” when that occupation “provides annual income that exceeds the poverty threshold for one person.”  Faust v. West, 13 Vet. App. 342, 355-56 (2000).  The M21-1MR states that “voluntary withdrawal from the labor market” is an “extraneous factor” whose “effects” should be “[i]dentif[ied] and isolate[d]” in determining whether the severity of the service-connected conditions preclude a veteran from “obtaining or retaining substantially gainful employment.”  M21-1MR, pt. IV, subpt. ii, ch. 2, sec. F.27.e.  Consequently, voluntary withdrawal from the labor market should not be an automatic bar to TDIU.
    In adjudicating an assertion of entitlement to TDIU, the Board must also consider whether the existing VA medical examination reports adequately “address the extent of functional and industrial impairment from the veteran’s service-connected disabilities.”  Gary v. Brown, 7 Vet. App. 229, 232 (1994).  Thus, if the Board determines that the existing examination reports are insufficient to assess the matter of TDIU, it should request additional medical evidence before adjudicating the matter. 
    In resolving a TDIU case, the question is whether the claimant is capable of securing or maintaining a substantially gainful occupation.  Although a claimant may be physically able to perform sedentary employment, he or she may not be educationally and vocationally qualified to perform such employment.  Although the duty to assist does not require VA to provide a vocational assessment to a claimant seeking a total disability rating based on individual unemployability, a claimant’s education and work experience are relevant to the issue of entitlement to such a rating.  Smith v. Shinseki, 647 F.3d 1380, 1386 (Fed. Cir. 2011).
    Specifically, it is within VA’s discretion to determine whether a vocational assessment was required based on “the facts of a particular case” and an assessment would be required “if, for example, the veteran were found medically qualified for a particular type of job, but there was an unusually difficult question as to whether the veteran had the educational or vocational skills for that position.”  Id.  Accordingly, Smith does not require VA to provide a vocational assessment in every instance where a claimant is seeking a total disability rating based on individual unemployability, but it does require VA to at least consider whether a vocational assessment is required and to support its determination that one is not required with an adequate statement of reasons or bases.  Id.; see also 38 U.S.C. § 7104(d)(1) (requiring the Board to provide a written statement of the reasons or bases for its “findings and conclusions[] on all material issues of fact and law presented on the record”).
    If a claimant does not meet the schedular rating for unemployability provided in 38 C.F.R. § 4.16(a), he may still be granted TDIU on an extraschedular basis.  38 C.F.R. § 4.16(b).  The central inquiry “is whether that veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.”  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  In making its decision, VA may consider the veteran’s education, special training, and previous work experience, but may not take into consideration any impairment caused by non-service-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 1.19.  The Board’s determination as to whether a claimant is unable to secure and hold substantially gainful employment is a finding of fact that the Court reviews under the “clearly erroneous” standard.  Bowling v. Principi, 15 Vet. App. 1, 6 (2001). 
    Although the Secretary and the Board can separate parts of a claim and develop and adjudicate them separately, see Fagre v. Peake, 22 Vet. App. 188, 191 n.4 (2008) (noting the Secretary is free to “issu[e] separate Board decisions with regard to each, some, or all disabilities claimed by a veteran”), TDIU remains a component of an increased rating claim for any period not adjudicated separately, and the Board has jurisdiction over the issue as long as it has jurisdiction over an increased rating claim.  See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  Evidence of unemployability subsequent to a decision denying TDIU and while a claim for increased benefits is still being processed may lead to an award of TDIU for the time period under adjudication.  If TDIU is not warranted pursuant to 38 C.F.R. section 4.16(a), the matter of a TDIU rating may still be referred to the director of Compensation and Pension Service for extraschedular consideration when it is found that the claimant is unemployable by reason of service-connected disabilities.  38 C.F.R. § 4.16(b). 
     “Evidence of unemployability,” does not equate to “100% unemployable.”  Roberson v. Principi, 251 F.3d at 1378, 1384-85 (Fed. Cir. 2001).  Instead, an appellant is not required “to show 100[%] unemployability in order to prove that he cannot ‘follow substantially gainful occupation.'”  Id.  Section 4.16(a) also indicates that “[m]arginal employment shall not be considered substantially gainful employment.”  Marginal employment includes employment in a “protected environment” including a “sheltered workshop.”  38 C.F.R. § 4.16(a).
    rice-v-shinseki-decision-assesment.pdf
    2008-7013-comer-v-peake.pdf
    97-1974-roberson-v-principi.pdf

    Tbird
    Policy Letter 20-01
    Article ID: 554400000143009
    DEPARTMENT OF VETERANS AFFAIRS
    Veterans Benefits Administration
    Washington, D.C. 20420
    March 19, 2020
    Subject: Effective Date Provisions for Supplemental Claims for Compensation and Pension Claims Filed Within a Year of a Decision from the United States Court of Appeals for the Federal Circuit or the Supreme Court of the United States.
    Purpose 
    This letter is to inform regional offices (ROs) that a supplemental claim filed within one­ year of a United States Court of Appeals for the Federal Circuit (Federal Circuit) or Supreme Court of the United States (Supreme Court) decision-is considered a continuously pursued claim and can be afforded the effective date protections outlined in 38 United States Code (U.S.C.) section 5110 and 38 Code of Federal Regulations (CFR) 3.2500(h)(1). 
    Background 
    The Veteran Appeals Improvement and Modernization Act of 2017 (AMA), overhauled VA's appeals process and provided Veterans, their families, and their survivors with increased choice in handling disagreements with VA's decisions. The AMA also included safeguards to ensure claimants receive the earliest effective date possible for their claims. Among those protections, 38 U.S.C. 5110 was amended to allow an effective date of an award to be as early as "the filing of the initial application for a benefit if the claim is continuously pursued by filing... a supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the Court of Appeals for Veterans Claims issues a decision." VA further delineated these effective date protections for continuously pursued issues in 38 CFR 3.2500(c) and 38 CFR 3.2500(h)(1).
    However, following a Court of Appeals for Veterans Claims (CAVC) decision, claimants can appeal a CAVC decision to the Federal Circuit. Moreover, following a Federal Circuit determination, claimants may request certiorari from the Supreme Court. 
    While the effective date protections afforded in the AMA did not explicitly extend protections to supplemental claims filed following decisions from the Federal Circuit or the Supreme Court, the Veterans Benefits Administration made the policy determination to extend these protections liberally. VA will construe the appeal to the CAVC to continue through the completion of any further judicial review of that same appeal for continuous pursuit purposes. As such, similar to CAVC decisions, valid supplemental claims for the same or similar benefit, filed within one year of either a Federal Circuit or Supreme Court decision, are considered continuously pursued. Furthermore, a valid supplemental claim timely filed after a Federal Circuit or Supreme Court decision, must be afforded the effective date considerations noted in 38 CFR 3.2500(c) and 38 CFR 3.2500(h)(1).
    Guidance
    Effective immediately, claims adjudicators must consider supplemental claims for compensation and pension benefits filed within one-year of a Federal Circuit or Supreme Court decision as continuously pursued claims and apply the provisions of 38 CFR 3.2500(h)(1) when adjudicating the claim. 
    Questions
    Questions relating to Compensation Service benefits can be directed to the Policy corporate mailbox VAVBAWAS/CO/211 Policy. Questions relating to Pension and Fiduciary Service benefits can be directed to the Policy and Procedures corporate mailbox VAVBAWAS/CO/P&F POL & PROC.
           /S/
    Beth Murphy
    Executive Director
    Compensation Service
    Ronald Burke
    Executive Director
    Pension and Fiduciary Service
    David McLenachen
    Executive Director
    Appeals Management Office

    Tbird
    VAOPGCPREC 2-2019 (6/25/2019) Crediting Certain Veterans for Their Payment of Statutory Funding Fee Author: Simpson, J.; Kearney, C.; Raffaelli, D.

    VAOPGCPREC 3-2019 (12/13/2019) Effective Date Provision of the Blue Water Navy Vietnam Veterans Act of 2019 Author: Jonas, B.
    VAOPGCPREC 1-2018 (8/06/2018) Fee Agreements and the Rapid Appeals Modernization Program Author: Krisch, J.
    VAOPGCPREC 1-2017 (1/06/2017) Service Connection Based on Obesity  Author: Adelman, M.
    VAOPGCPREC 1-2015 (2/19/2015) Compensation of Fee-Basis Employees  Author: Knott, C.
    VAOPGCPREC 2-2015 (3/20/2015) Authority to Solicit Gifts under 38 USC 8301  Author: Jaynes, M.
    VAOPGCPREC 3-2015 (12/07/2016) WITHDRAWN (8/28/2015) Whether Graves of Civil War-Era Soldiers Currently Identified with Marble Stones with Numerical Inscriptions Constitute "Unmarked Graves" for Purposes of VA Furnishing a Headstone or Marker under 38 U.S.C. § 2306  Author: Lee, Y.K.
    VAOPGCPREC 4-2015 (12/03/2015) Impact of veteran's death on a dispute regarding potential attorney's fees; Impact of accrued-benefits claim on potential attorney's fees   Author: Thompson, B.
    VAOGCPREC 1-2014 (3/21/2014)  Provision of Primary Care for Residents in State Home Domiciliaries  Author: Raun, E.
    VAOGCPREC 2-2014 (5/19/14) Applicability of the Veterans Claims Assistance Act of 2000 to Decisions Concerning Benefits Administered by the National Cemetery Administration  Author: Warren, T.
    VAOGCPREC 3-2014 (6/20/14) Effective Dates of Awards Based on Same-Sex Marriage  Author: Shriber, C.
    VAOGCPREC 4-2014 (6/20/14) Reliance on State Law to Determine Validity of Same-Sex Marriage Author: Shriber, C.
    VAOGCPREC 5-2014 (1/5/17) REVISED (8/12/14) Duty to Assist in Seeking Records pertaining to an Individual other than the Claimant Link to Original    Author: Barrans, D.
    VAOGCPREC 6-2014 (11/21/2014) Notice Required by 38 USC § 513(a)(1) upon Receipt of a New and Material Evidence Claim  Author: Adelman, M.
    VAOPGCPREC 1-2012 (1/24/2012)  Specially Adapted Housing (SAH) Escrow Accounts  Author: Simpson, J.
    VAOPGCPrec 2-2012 (10/31/2012)  -  Implementation of Public Law 112-154  Author: Simpson, J.
    VAOPGCPrec 3-2012 (12/20/12)  Review of Prior Decisions Involving Military Sexual Trauma  Author: Griffin, B.
    VAOPGCPREC 1-2011  Veterans’ Health Administration Quality-Assurance Records and Board of Veterans’ Appeal Review Authority – 38 U.S.C. § 5705; 38 C.F.R. §§ 17.500-17.511 (4/19/2011)
     
    PREC 1-2010 Overpayment and Requirement to Offset from Compensation Paid Under 38 U.S.C., § 1151 Amounts Recovered Under the Federal Tort Claims Act
    PREC 2-2010 Osborn v. Nicholson 21 Vet. App. 223 (2007) - Effect on Existing General Counsel Opinions, Application to other Benefit Programs, and Applicability to Series HH U.S. Savings Bonds and Bonds Issued by Other Political Subdivisions - 38 U.S.C. § 1503(a)(6), 38 C.F.R. 21 3.272(e)
    PREC 3-2010  Opinion temporarily withdrawn from web publication.
    PREC 4-2010 Clothing Allowance Benefit – 38 U.S.C. § 1162 and attach to this the first opinion attached.
    PREC 5-2010  (9/1/2010)  Applicability of 38 U.S.C. § 3677(c)(7) for Approval of On-The-Job Program for Employees of State Approving Authorities
    PREC 6-2010  (10/12/2010)  Presidential Memorandum – Do Not Pay List
    PREC 1-2009    Surviving Spouse's Benefit for Month of Veteran's Death - 38 U.S.C. § 5310(b)  (1/22/2009)  Citation: VAOPGCPREC1-2009  Author: Lee, K.
    PREC 2-2009     Use of VA Appropriations to Provide Medical Examinations for Service Members Enrolled in DES Pilor Program     (2/10/2009)  Citation: VAOPGCPREC 2-2009  Author: Adelman, M.
    PREC 1-2008     Opinion on Reimbursing Veterans under the SAH Program    Citation: Vet. Aff. Op. Gen Couns. Prec. 1-2008,  VAOPGCPREC 1-2008, 2008
    PREC 2-2008    Servicemembers' Entitlement to Rehabilitation and Vocational Benefits under Public Law 110-181     Citation: Vet. Aff. Op. Gen. Couns. Prec. 2-2008, VAOPGCPREC 2-2008, 2008
    PREC 3-2008 Servicemembers' Entitlement to Rehabilitation and Vocational Benefits under Public Law 110-181     Citation: Vet. Aff. Op. Gen. Couns. Prec. 3-2008, VAOPGCPREC 3-2008, 2008
    PREC 1-2007    Applicability of 38 C.F.R. § 3.105(e) to TDIU Award Reinstated Based on CUE      Citation: Vet. Aff. Op. Gen Couns. Prec. 1-2007,  VAOPGCPREC 1-2007, 2007
    PREC 2-2007      Padgett v. Nicholson, 473 F.3d 1364 (Fed. Cir.2007) - Effect on Appeal Pending before Board of Veterans' Appeals when Applicant Dies - 38 C.F.R. § 20.1302    Citation: Vet. Aff. Op. Gen Couns. Prec. 2-2007,  VAOPGCPREC 2-2007, 2007
    PREC 1-2006    Qualifying Service under 38 USC §§ 3011 and 3012, and resulting Delimiting Date   Citation: Vet. Aff. Op. Gen Couns. Prec. 1-2006,  VAOPGCPREC 1-2006, 2006
    PREC 2-2006    Applicability of 38 U.S.C. § 6107 Where Misuse Occurred before December 10, 2004    Citation: Vet. Aff. Op. Gen. Couns. Prec 2-2006, VAOPGCPREC 2-2006, 2006
    PREC 3-2006   Multiple Ratings under Former 38 C.F.R. § 4.71a, Diagnostic Code 5285 (2003)   Citation: Vet. Aff. Op. Gen. Couns. Prec. 3-2006, VAOPGCPREC 3-2006, 2006
    PREC 4-2006     Proper Implementation of Public Law 109-233, Section 101 - Specially Adapted Housing Assistance      Citation: Vet. Aff. Op. Gen. Couns. Prec. 4-2006, VAOPGCPREC 4-2006, 2006
    PREC 5-2006     Incarceration in a Privately Owned and Operated Correctional Facility - 38 U.S.C. § 5313      Citation: Vet. Aff. Op. Gen Couns. Prec. 5-2006,  VAOPGCPREC 5-2006, 2006
    PREC 6-2006    Applicability of SGLI Tax Exemption to TSGLI - 38 U.S.C. §§ 1970(g), 1980A       Citation: Vet. Aff. Op. Gen Couns. Prec. 5-2006,  VAOPGCPREC 6-2006, 2006
    PREC 1-2005    Applicability of the Veterans Claims Assistance Act to Claims by States that Pertain to the State Home Program     Citation: Vet. Aff. Op. Gen Couns. Prec. 1-2005, VAOPGCPREC 1-2005, 2005
    PREC 2-2005      Applicability of SGLI and VGLI Tax Exemption - 38 U.S.C. § 1970(g)Citation: Vet. Aff. Op. Gen Couns. Prec. 2-2005, VAOPGCPREC 2-2005, 2005
    PREC 3-2005    Calculation of Sixty-First Day of Incarceration - 38 U.S.C. §§ 5313(a) and 1505(a)    Citation: Vet. Aff. Op. Gen Couns. Prec. 3-2005, VAOPGCPREC 3-2005, 2005
    PREC 4-2005     Whether Request for Equitable Relief may be Considered "an Administrative Remedy" under Section 113(b) of Public Law 106-419    Citation: Vet. Aff. Op. Gen. Couns. Prec. 4-2005, VAOPGCPREC 4-2005, 2005
    PREC 5-2005     Eligibility for a "Temporary" Total Disability Rating Based on Individual Unemployability - 38 C.F.R. § 4.16(b)     Citation: Vet. Aff. Op. Gen. Couns. Prec. 5-2005, VAOPGCPREC 5-2005, 2005
    PREC 1-2004    Effect of Pelegrini v. Principi concerning Content of Notice provided to Claimants under 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)    Citation: Vet. Aff. Op. Gen Couns. Prec. 1-2004, VAOPGCPREC 1-2004, 2004
    PREC 2-2004    Applicability of 38 U.S.C. § 5103(a) to a Claim for Separate Ratings for Service-Connected Tinnitus in Each Ear     Citation: Vet. Aff. Op. Gen Couns. Prec. 2-2004, VAOPGCPREC 2-2004, 2004
    PREC 3-2004     Eligibility for Automobile Assistance in Relation to Compensation for Disability “As If” Service Connected--38 U.S.C. §§ 1151(a) and 3901(1)(A); 38 C.F.R. § 3.808     Citation: Vet. Aff. Op. Gen Couns. Prec. 3-2004, VAOPGCPREC 3-2004, 2004
    PREC 4-2004    Reconciliation of Moody v. Principi, 360 F.3d 1306 (Fed. Cir. 2004), and Case Law on Cue Claims    Citation: Vet. Aff. Op. Gen Couns. Prec. 4-2004, VAOPGCPREC 4-2004, 2004
    PREC 5-2004     Applicability of 38 U.S.C. §§ 5103(a) and 5103A to Claims that Cannot Be Substantiated  Citation: Vet. Aff. Op. Gen Couns. Prec. 5-2004, VAOPGCPREC 5-2004, 2004
    PREC 6-2004    Character of Discharge of National Guard Member   Citation: Vet. Aff. Op. Gen. Couns. Prec. 6-2004, VAOPGCPREC 6-2004, 2004
    PREC 7-2004    Pelegrini v. Principi, No. 01-944, 2004 WL 1403714 (Vet. App. June 24, 2004)   Citation: Vet. Aff. Op. Gen. Couns. Prec. 7-2004, VAOPGCPREC 7-2004, 2004
    PREC 8-2004      Application of 38 C.F.R. §§ 3.105(a), 3.400(k), 21.3040(d) and 21.3041(d) to Claims for Education Assistance Benefits under Chapter 35, Title 38, United States Code       Citation: Vet. Aff. Op. Gen. Couns. Prec. 8-2004, VAOPGCPREC 8-2004, 2004
    Prec 9- 2004    Rating Limitation of Flexion and Extension of the Leg      Citation: Vet. Aff. Op. Gen. Couns. Prec. 9-2004, VAOPGCPREC 9-2004, 2004
    Prec 10- 2004     Effect of Return to Active Duty upon Claims for VA Benefits   Citation: Vet. Aff. Op. Gen. Couns. Prec. 10-2004, VAOPGCPREC 10-2004, 2004
    PREC 01-2003    Impact of Disabled American Veterans v. Secretary of Veterans Affairs, Case Nos. 02-7304, -7305, -7316 (Fed. Cir. May 1, 2003)    Citation: Vet. Aff. Op. Gen. Couns. Prec. 1-2003, VAOPGCPREC 1-2003, 2003
    PREC 2-2003   Application of 38 C.F.R. § 4.87, Diagnostic Code 6260, Tinnitus Recurrent    Citation: Vet. Aff. Op. Gen. Couns. Prec. 2-2003, VAOPGCPREC 2-2003, 2003
    PREC 3-2003    Requirements for Rebutting the Presumption of Sound Condition under 38 U.S.C. § 1111 and 38 C.F.R. § 3.304     Citation: Vet. Aff. Op. Gen. Couns. Prec. 3-2003, VAOPGCPREC 2-2003, 2003
    PREC 4-2003   Suspension or Termination of Debt Collection      Citation: Vet. Aff. Op. Gen. Couns. Prec. 4-2003, VAOPGCPREC 4-2003, 2003
    PREC 5-2003    Informal Clain for Increase Based on Hospital Admission - 38 C.F.R. § 3.157(b)(1)     Citation: Vet. Aff. Op. Gen. Couns. Prec. 5-2003, VAOPGCPREC 5-2003, 2003
    PREC 6-2003 Service Connection for Cause of Disability or Death Citation: Vet. Aff. Op. Gen. Couns. Prec. 6-2003, VAOPGCPREC 6-2003, 2003
    PREC 7-2003   Application of Veterans Claims Assistance Act to Claims Pending on Date of EnactmentCitation:  Vet. Aff. Op. Gen. Couns. Prec. 7-2003, VAOPGCPREC 7-2003, 2003
    PREC 8-2003   Notice of Information and Evidence Necessary to Substantiate Claim -- Issues Raised in Notice of Disagreement -- 38 U.S.C. §§ 5103(a), 7105(d)    Citation: Vet. Aff. Op. Gen. Couns. Prec. 8-2003, VAOPGCPREC 8-2003, 2003
    PREC 9-2003    Scope of Protection provided by 38 U.S.C. § 2305 in Claims for Burial Benefits under 38 U.S.C. Chapter 23     Citation: Vet. Aff. Op. Gen. Couns. Prec. 9-2003, VAOPGCPREC 9-2003,2003
    PREC 1-2002    Dual Eligibility for Chapter 35 Benefits   Citation: Vet. Aff. Op. Gen Couns. Prec. 1-2002, VAOPGCPREC 1-2002, 2002
    PREC 2-2002    Nonassignability of Benefits—38 U.S.C. § 5301(a)    Citation: Vet. Aff. Op. Gen Couns. Prec. 2-2002, VAOPGCPREC 2-2002, 2002
    PREC 3-2002    Disposition of Request for Waiver of Indebtedness in the Event of Death of the Veteran    Citation: Vet. Aff. Op. Gen Couns. Prec. 3-2002, VAOPGCPREC 3-2002, 2002
    PREC 4-2002   Meaning of “Injury” for Purposes of Active Service – 38 U.S.C. § 101(24)  Citation: Vet. Aff. Op. Gen Couns. Prec. 4-2002, VAOPGCPREC 4-2002, 2002
    PREC 5-2002   Judicial Review of Regulations found in Part 4 of Title 38, Code of Federal RegulationsCitation: Vet. Aff. Op. Gen. Couns. Prec. 5-2002, VAOPGCPREC 5-2002, 2002
    PREC 6-2002 Protection of Service Connection - 38 U.S.C. § 1159, 38 C.F.R. § 3.957Citation: Vet. Aff. Op. Gen. Couns. Prec. 6-2002, VAOPGCPREC 6-2002, 2002
    PREC 7-2002   Termination of Benefits of Fugitive Felons Under Section 505 of Public Law 107-103    Citation: Vet. Aff. Op. Gen. Couns. Prec. 7-2002, VAOPGCPREC 7-2002, 2002
    PREC 1-01    Consideration of Retroactive Compensation Award in Determining Estate of Veteran for Purposes of $1,500    Citation: Vet.Aff. Op. Gen.Couns.Prec. 1-01, VAOPGCPREC 1-01, 2001  
    PREC 2-01    Qualification for MGIB benefits under 38 U.S.C. § 3011(1)(a)(B) and 38 C.F.R. 21.7020(b)(5) when the individual had a break in active duty service     Citation: Vet. Aff. Op.Gen.Couns. Prec. 2-01,  VAOPGCPREC 2-01, 2001      
    PREC 3-01   Claims Assistance Act of 2000 -- Pub. L. 106-475    Citation: Vet. Aff. Op. Gen. Couns. Prec. 3-01,  VAOPGCPREC 3-01, 2001 
    PREC 4-01    Rating Disability Compensated Under 38 U.S.C. § 1151 As If Service Connected--38 C.F.R. §§ 3.322(a) and 4.22     Citation: Vet. Aff. Op. Gen. Couns. Prec. 4-01,  VAOPGCPREC 4-01, 2001 
    PREC 5-01   Application of 38 U.S.C. § 1151 to Claims Based on VA Failure to Diagnose Pre-Existing Condition       Citation: Vet. Aff. Op. Gen. Couns. Prec. 5-01,  VAOPGCPREC 5-01, 2001 
    PREC 6-01   Availability of an Independent Living Housing Modification when Specially Adapted Housing (38 U.S.C. § 2101) and Home Improvement & Structural Alterations (38 U.S.C. 1717) have already been Provided        Citation: Vet. Aff. Op. Gen. Couns. Prec. 6-01,  VAOPGCPREC 6-01, 2001  
    PREC 7-01    Effective Date of Reduction of VA Compensation When Veteran Is Receiving Military Retired or Retirement Pay     Citation: Vet. Aff. Op. Gen. Couns. Prec. 7-01,  VAOPGCPREC 7-01, 2001 
     PREC 8-01    Meaning of “Injury” for Purposes of Active Service – 38 U.S.C. § 101(24)      Citation: Vet.Aff.Op.Gen.Couns.Prec. 8-01,  VAOPGCPREC 8-01, 2001       
    PREC 9-01   Correct Delimiting Date      Citation: Vet. Aff. Op. Gen. Couns. Prec. 9-01,  VAOPGCPREC 9-01, 2001      
    PREC 10-01   Limitation on payment of compensation and pension benefits while a beneficiary is incarcerated pursuant to 38 U.S.C. §§ 5313 &1505    Citation: Vet. Aff. Op. Gen. Couns. Prec. 10-01,  VAOPGCPREC 10-01, 2001 
     PREC 11-01    Eligibility for a Headstone or Marker in Capital Crimes Cases    Citation: Vet. Aff. Op. Gen. Couns. Prec. 11-01,  VAOPGCPREC 11-01, 2001 
    PREC 12-01    Roberson v. Principi, No. 00-7009, 2001 U.S. App. LEXIS 11008 (Fed. Cir. May 29, 2001)     Citation: Vet.Aff.Op. Gen. Couns. Prec. 12-01,  VAOPGCPREC 12-01,  2001    THIS OPINION WAS SUPERSEDED BY PREC 4-2004 (5/28/2004).                                                                                         
    PREC 13-01    Withholding of Identity of Informers and Investigators involved in Field Examinations          Citation: Vet. Aff. Op. Gen. Couns. Prec. 13-01,  VAOPGCPREC 13-01, 2001 
    PREC 14-01    Return to the Board of Cases Remanded for Evidentiary Development --38 C.F.R. §§ 19.9, 19.31, 19.38      Citation:  Vet. Aff. Op. Gen. Couns. Prec. 14-01, VAOPGCPREC 14-01, 2001  CAUTION:  However, see Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), which invalidated VA regulations permitting the Board of Veterans' Appeals to consider evidence that was not already considered by the agency of original jurisdiction, without obtaining the appellant’s waiver of the right to initial consideration by the agency of original jurisdiction.
    PREC 1-00    Countable Income for Death Pension Purposes--Deduction of Expenses Paid for Veteran's Last Illness Subsequent to Veteran's Death, but Prior to Date of Entitlement   Citation: Vet. Aff. Op. Gen. Couns. Prec. 1-00, VAOPGCPREC 1-00, 2000 
    PREC 2-00    Special Monthly Compensation for Loss of Creative Organ--Mastectomy--38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a)     Citation: Vet. Aff. Op. Gen. Couns. Prec. 2-00,  VAOPGCPREC 2-00, 2000
    PREC 3-00    Retroactive Applicability of Revised Rating Schedule Criteria to Increased Rating Claims    Citation: Vet. Aff. Op. Gen. Couns. Prec. 2-00,  VAOPGCPREC 3-00, 2000 
    PREC 4-00   Nature of Manual Provisions Concerning Claims Involving Asbestos-Related Diseases; Need for Medical-Nexus Evidence in Asbestos-Related Claims    Citation: Vet. Aff. Op. Gen. Couns. Prec. 4-00,  VAOPGCPREC 4-00, 2000
    PREC 5-00    Constitutionality of Retroactive Application of Proposed Legislation To Limit Time to Claim Insurance Proceeds    Citation: Vet. Aff. Op. Gen. Couns. Prec. 5-00,  VAOPGCPREC 5-00, 2000 
    PREC 6-00    Nature of Manual Provisions Concerning Claims Involving Rheumatic Heart Disease     Citation: Vet. Aff. Op. Gen. Couns. Prec. 6-00,  VAOPGCPREC 6-00, 2000
    PREC 7-00    Qualification of Foreign Medical Studies as "Course of Study"      Citation: Vet. Aff. Op. Gen. Couns. Prec 7-00,  VAOPGCPREC 7-00, 2000
    PREC 8-00    Status of Surviving Spouse to Receive Death Benefits      Citation: Vet. Aff. Op. Gen. Couns. Prec. 8-00,  VAOPGCPREC 8-00, 2000
    PREC 9-00    Effect of Statements in Hix and Pardue v. Gober Concerning Evidence to be Considered in Determinations of “Hypothetical” Entitlement for Purposes of 38 U.S.C. § 1311(a)(2)     Citation: Vet. Aff. Op. Gen. Couns. Prec. 9-00,  VAOPGCPREC 9-00, 2000
    PREC 10-00    Jurisdiction of the Board of Veterans’ Appeals in Consideration of Per Diem Payments to a State Home   Citation: Vet. Aff. Op. Gen. Couns. Prec. 10-00,  VAOPGCPREC 10-00, 2000
    PREC 11-00    Effective Date of Public Law No. 106-475 -- Duty to Assist    Citation: Vet. Aff. Op. Gen. Couns. Prec. 11-00,  VAOPGCPREC 11-00, 2000
     
    VAOGCPREC 1-1999  (3/15/17) REVISED Interpretation of 38 U.S.C. § 1151 and 38 C.F.R. § 3.358; Psychiatric Disability Resulting from Assault During Examination or Treatment   Citation:  Vet. Aff. Op. Gen. Couns. Prec. 1-99,  VAOPGCPREC 1-99, 1999 Link to Original
    PREC 2-99    Authority to Provide FTS Service to Veterans Service Organizations Citation: Vet. Aff. Op. Gen. Couns. Prec. 2-99,  VAOPGCPREC 2-99, 1999 
    PREC 3-99    Effective Date of Award and Date of Commencement of Payment of Monetary Allowance for Spina Bifida Under 38 U.S.C. § 1805   Citation: Vet. Aff. Op. Gen. Couns. Prec. 3-99,  VAOPGCPREC 3-99, 1999 
    PREC 4-99    Requirement for a Well-Grounded Claim Under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317--Undiagnosed Illness-Persian Gulf War     WITHDRAWN   Citation:  Vet. Aff. Op. Gen. Couns. Prec. 4-99,  VAOPGCPREC 4-99, 1999
    PREC 5-99    Scope of the Term Spina Bifida for Purposes of Benefits Under Section 421 of Pub. L. No. 104-204   Citation: Vet. Aff. Op. Gen. Couns. Prec. 5-99,  VAOPGCPREC 5-99, 1999 
    PREC 6-99    Consideration of Claim of Total Disability Based on Individual Unemployability Where Schedular Total-Disability Rating in Effect WITHDRAWN  Citation:  Vet. Aff. Op. Gen. Couns. Prec. 6-99,  VAOPGCPREC 6-99, 1999 
    PREC 7-99    Dependency and Indemnity Compensation--Disabilities Resulting from Alcohol or Drug Abuse--Pub. L. No. 101-508, § 8052   Citation: Vet. Aff. Op. Gen. Couns. Prec. 7-99,  VAOPGCPREC 7-99, 1999
    PREC 8-99    Applicability of Incontestable Provision in NSLI Policies--38 U.S.C. § 1910     Citation: Vet. Aff. Op. Gen. Couns. Prec. 8-99,  VAOPGCPREC 8-99, 1999 
    PREC 9-99    Authority of Board of Veterans' Appeals to Adjudicate Question of Timeliness of Substantive Appeal When Issue Not Previously Adjudicated by Agency of Original Jurisdiction   Citation:  Vet. Aff. Op. Gen. Couns. Prec. 9-99,  VAOPGCPREC 9-99, 1999 
    PREC 10-99    Mitigating Circumstances-Six Semester Hour Exemption    Citation: Vet. Aff. Op. Gen. Couns. Prec. 10-99,  VAOPGCPREC 10-99, 1999 
    PREC 11-99    Effect of Former Manual Provisions Concerning Authority to Pay Compensation for Retinitis Pigmentosa   Citation:  Vet. Aff. Op. Gen. Couns. Prec. 11-99,  VAOPGCPREC 11-99, 1999 
    PREC 12-99    Determinations as to Whether a Veteran "Engaged in Combat With the Enemy" for Purposes of 38 U.S.C. § 1154(b)    Citation: Vet. Aff. Op. Gen. Couns. Prec. 12-99,  VAOPGCPREC 12-99, 1999 
    PREC 13-99    Date of Claim in a Montgomery GI Bill Case   Citation: Vet. Aff. Op. Gen. Couns. Prec. 13-99,  VAOPGCPREC 13-99, 1999
    PREC 14-99    Vesting of Montgomery GI Bill (MGIB) benefits    Citation: Vet. Aff. Op. Gen. Couns. Prec. 14-99,  VAOPGCPREC 14-99, 1999
    Prec 15-99    Validity of Regulatory Provisions Precluding Service Connection of Polycythemia Vera Based on Exposure to Ionizing Radiation     Citation: Vet. Aff. Op. Gen. Couns. Prec. 15-99,  VAOPGCPREC 15-99, 1999 
    PREC 16-99    Effect of Entry Level Separation Based upon Fraudulent Enlistment on Status as a Veteran     Citation: Vet. Aff. Op. Gen. Couns. Prec. 16-99,  VAOPGCPREC 16-99, 1999
     
    PREC 01-98    Effective Date of Pub. L. No. 105-111--Revision of Decisions Based on Clear and Unmistakable Error    Citation: Vet. Aff. Op. Gen. Couns. Prec. 1-98, VAOPGCPREC 1-98, 1998
    PREC 02-98    Benefits Based on Service-Connected Disability or Death--Disabilities Resulting from Alcohol or Drug Abuse--Pub. L. No. 101-508, § 8052    Citation: Vet. Aff. Op. Gen. Couns. Prec. 2-98, VAOPGCPREC 2-98, 1998
    PREC 03-98    Definition of Institution in 38 USC §§ 101(4)(A)(iii) & 104(a)   WITHDRAWN (3/25/2005) Citation: Vet. Aff. Op. Gen. Couns. Prec. 3-98, VAOPGCPREC 3-98, 1998
    PREC 04-98    Applicability of 38 U.S.C. § 2305 in Claims for Burial Benefits Based upon Service in the Commonwealth Army of the Philippines During World War II     Citation: Vet. Aff. Op. Gen. Couns. Prec. 4-98, VAOPGCPREC 4-98, 1998
    PREC 05-98    Distribution of Estate Assets    Citation: Vet. Aff. Op. Gen. Couns. Prec. 5-98, VAOPGCPREC 5-98, 1998
    PREC 06-98    Consideration of Waiver and Challenge to Validity of Debt    Citation: Vet. Aff. Op. Gen. Couns. Prec. 6-98, VAOPGCPREC 6-98, 1998
    PREC 07-98    REPS (Restored Entitlement Program for Survivors) Effective Dates Citation: Vet. Aff. Op. Gen. Couns. Prec. 7-98, VAOPGCPREC 7-98, 1998   
    PREC 08-98    Compensation for Undiagnosed Illness Under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317      Citation: Vet. Aff. Op. Gen. Couns. Prec. 8-98, VAOPGCPREC 8-98, 1998
    PREC 09-98    Multiple Ratings for Musculoskeletal Disability and Applicability of 38 C.F.R. §§ 4.40, 4.45, and 4.59      Citation: Vet. Aff. Op. Gen. Couns. Prec. 9-98, VAOPGCPREC 9-98, 1998
    PREC 10-98    Surviving Spouse’s Benefit for Month of Veteran’s Death--38 U.S.C. § 5310(b); 38 C.F.R. § 3.20(c)      Citation: Vet. Aff. Op. Gen. Couns. Prec. 10-98, VAOPGCPREC 10-98, 1998
    PREC 11-98    Priorities for Care Under VA’s New Patient Enrollment System      Citation: Vet. Aff. Op. Gen. Couns. Prec. 11-98, VAOPGCPREC 11-98, 1998
    PREC 12-98    Effective Date of Increased Rating Claim -- 38 C.F.R. § 3.400(o)(2) and (q)(1)(i)      Citation: Vet. Aff. Op. Gen. Couns. Prec. 12-98, VAOPGCPREC 12-98, 1998
    PREC 13-98    Surviving Spouse’s Eligibility for Benefits--38 U.S.C. § 1311 (e) --Pub. L. No. 105-178, § 8207     Citation: Vet. Aff. Op. Gen. Couns. Prec. 13-98, VAOPGCPREC 13-98, 1998
    PREC 14-98    Issues Raised by Joint Remand Motion: Presumption of Aggravation for Chronic Diseases; Removal of Documents from Claims File; Validity of 38 C.F.R. § 20.903     Citation: Vet. Aff. Op. Gen. Couns. Prec. 14-98, VAOPGCPREC 14-98, 1998
     
    PREC 1-97    Countability of Distributions from Individual Retirement Accounts as Income for Purposes of Pension and Parents’ Dependency and Indemnity Compensation     Citation: Vet. Aff. Op. Gen Couns. Prec. 1-97, VAOPGCPREC 1-97, 1997
    PREC 2-97    Secondary Service Connection of a Disability Resulting from a Veteran's Alcohol or Drug Abuse - 38 C.F.R. § 3.310(a)     Citation: Vet. Aff. Op. Gen Couns. Prec. 2-97, VAOPGCPREC 2-97, 1997
    PREC 3-97   Offset of Benefits under 38 U.S.C. § 1318      Citation: Vet. Aff. Op. Gen Couns. Prec. 3-97, VAOPGCPREC 3-97, 1997
    PREC 4-97    Board of Veterans' Appeals Jurisdiction in Matters pertaining to Garnishment of Benefits     Citation: Vet. Aff. Op. Gen Couns. Prec. 4-97, VAOPGCPREC 4-97, 1997
    PREC 5-97    Dental Care Eligibility - Neilson v. Brown, 7 Vet. App. 22 (1994)     Citation: Vet. Aff. Op. Gen Couns. Prec. 5-97, VAOPGCPREC 5-97, 1997
    PREC 6-97    Official Information regarding Incarceration pursuant to 38 U.S.C. § 5313     Citation: Vet. Aff. Op. Gen Couns. Prec. 6-97, VAOPGCPREC 6-97, 1997
    PREC 7-97    Benefits under 38 U.S.C. § 1151 for Disability Incurred as the "Result of Hospitalization"     Citation: Vet. Aff. Op. Gen Couns. Prec. 8-97, VAOPGCPREC 8-97, 1997
    PREC 8-97    Applicability of 38 C.F.R. § 3.310 to Disability Proximately to or the result of Disability covered by 38 U.S.C. § 1151     Citation: Vet. Aff. Op. Gen Couns. Prec. 8-97, VAOPGCPREC 8-97, 1997
    PREC 9-97    Perfecting an Appeal after issuance of a Supplemental Statement of the Case - 39 U.S.C. § 7105(d); 38 C.F.R. § 20.301(c)     Citation: Vet. Aff. Op. Gen Couns. Prec. 9-97, VAOPGCPREC 9-97, 1997
    PREC 10-97    Treatment of Alaska Native Corporation Distributions for Improved-Pension Purposes     Citation: Vet. Aff. Op. Gen Couns. Prec. 10-97, VAOPGCPREC 10-97, 1997
    PREC 11-97    Application of Amended Rating Schedule Provisions in Pending Claims involving Ratings for Mental Disorders    Citation: Vet. Aff. Op. Gen Couns. Prec. 11-97, VAOPGCPREC 11-97, 1997
    PREC 12-97    Payments of Attorney Fees from Past-due Benefits under 38 U.S.C. § 5904(d)    Citation: Vet. Aff. Op. Gen Couns. Prec. 12-97, VAOPGCPREC 12-97, 1997
    PREC 13-97    Reduction of a Total Disability Rating based on Individual Unemployability due to removal from the "Work Possible Environment"     Citation: Vet. Aff. Op. Gen Couns. Prec. 13-97, VAOPGCPREC 13-97, 1997
    PREC 14-97    Application of 38 U.S.C. § 1151 to Vocational Rehabilitation Program Participants       Citation: Vet. Aff. Op. Gen Couns. Prec. 14-97, VAOPGCPREC 14-97, 1997 
    PREC 15-97    Treatment of Income received from Bonds of Tribal Enterprise     Citation: Vet. Aff. Op. Gen Couns. Prec. 15-97, VAOPGCPREC 15-97, 1997
    PREC 16-97    Application of the Veterans' Benefits Improvement Act of 1996, Pub. L. No. 104-275, §§ 502 & 507 - Clothing Allowance; Accrued Benefits     Citation: Vet. Aff. Op. Gen Couns. Prec. 16-97, VAOPGCPREC 16-97, 1997
    PREC 17-97    Payment of Vocational Training expenses directly to a Veteran     Citation: Vet. Aff. Op. Gen Couns. Prec. 17-97, VAOPGCPREC 17-97, 1997
    REC 18-97    Presumptive Service Connection for Diseases associated with Herbicide Exposure - Metastasized Cancer     Citation: Vet. Aff. Op. Gen Couns. Prec. 18-97, VAOPGCPREC 18-97, 1997
    PREC 19-97    Secondary Service Connection based on Nicotine Dependence     Citation: Vet. Aff. Op. Gen Couns. Prec. 19-97, VAOPGCPREC 19-97, 1997
    PREC 20-97    Definition of Insanity in 38 C.F.R. § 3.354(a)     Citation: Vet. Aff. Op. Gen Couns. Prec. 20-97, VAOPGCPREC 20-97, 1997
    PREC 21-97    Pension Income: Characterization of Per Capita Distributions of Revenues from Gaming on Tribal Trust Land     Citation: Vet. Aff. Op. Gen Couns. Prec. 21-97, VAOPGCPREC 21-97, 1997
    PREC 22-97    Mandatory Electronic Funds Transfer (Direct Deposit)      Citation: Vet. Aff. Op. Gen Couns. Prec. 22-97, VAOPGCPREC 22-97, 1997
    PREC 23-97    Multiple Ratings for Knee Disability     Citation: Vet. Aff. Op. Gen Couns. Prec. 23-97, VAOPGCPREC 23-97, 1997
    PREC 24-97    Special Housing Adaptation for Veteran receiving Compensation under Section 1151     Citation: Vet. Aff. Op. Gen Couns. Prec. 24-97, VAOPGCPREC 24-97, 1997
    PREC 25-97    Treatment of Military Retired Pay paid directly to an Ex-Spouse in determining entitlement to Need-based Benefits     Citation: Vet. Aff. Op. Gen Couns. Prec. 25-97, VAOPGCPREC 25-97, 1997
    PREC 26-97    Retroactive Benefits in Claims for Service Connection of Post-Traumatic Stress Disorder     Citation: Vet. Aff. Op. Gen Couns. Prec. 26-97, VAOPGCPREC 26-97, 1997
    PREC 27-97    Service in the Republic of Vietnam for purposes of Definition of Vietnam Era - 38 U.S.C. § 101(29)(a)     Citation: Vet. Aff. Op. Gen Couns. Prec. 27-97, VAOPGCPREC 27-97, 1997
    PREC 28-97    Eligibility for Supplemental SDVI     Citation: Vet. Aff. Op. Gen Couns. Prec. 28-97, VAOPGCPREC 28-97, 1997
    PREC 29-97    Application of 38 C.F.R. § 3.105(e) - Reduction in Service-Connected Disability Rating     Citation: Vet. Aff. Op. Gen Couns. Prec. 29-97, VAOPGCPREC 29-97, 1997
    PREC 30-97    Entitlement to Special Monthly Compensation for Disarticulation of the Hips following preexisting Paraplegia     Citation: Vet. Aff. Op. Gen Couns. Prec. 30-97, VAOPGCPREC 30-97, 1997
    PREC 31-97    Reconsideration of Regional Office Decision reducing Rating     Citation: Vet. Aff. Op. Gen Couns. Prec. 31-97, VAOPGCPREC 31-97, 1997
    PREC 32-97    Authority for Evaluating Unilateral Hearing Impairment     Citation: Vet. Aff. Op. Gen Couns. Prec. 32-97, VAOPGCPREC 32-97, 1997
    PREC 33-97    Treatment of Assets placed in a Special Needs Trust in determining Eligibility for Improved Pension     Citation: Vet. Aff. Op. Gen Couns. Prec. 33-97, VAOPGCPREC 33-97, 1997
    PREC 34-97    Application of 38 U.S.C. § 3104(b)    Citation: Vet. Aff. Op. Gen Couns. Prec. 34-97, VAOPGCPREC 34-97, 1997
    PREC 35-97   Effective Date of Award of Dependency and  Indemnity Compensation     Citation: Vet. Aff. Op. Gen Couns. Prec. 35-97, VAOPGCPREC 35-97, 1997
    PREC 36-97   Applicability of 38 C.F.R. §§ 4.40, 4.45 and 3.321(b)(1) in Rating Disability under Diagnostic Code 5293 (intervertebral Disc Syndrome)     Citation: Vet. Aff. Op. Gen Couns. Prec. 36-97, VAOPGCPREC 36-97, 1997
    PREC 37-1997    Opinion requested concerning Attorney Fees    Citation: Vet. Aff. Op. Gen Couns. Prec. 37-97, VAOPGCPREC 37-97, 1997
    PREC 38-97    Failure to apply Evidentiary Presumption as a basis to Reopen Claim     Citation: Vet. Aff. Op. Gen Couns. Prec. 38--97, VAOPGCPREC 38-97, 1997
    PREC 39-97   Countability as Income of Reparations paid to Victims of Nazi Persecution     Citation: Vet. Aff. Op. Gen Couns. Prec. 39-97, VAOPGCPREC 39-97, 1997
    PREC 40-97    Effective Date of Amendments to 38 U.S.C. § 1151 made by Pub. L. No. 104-204    Citation: Vet. Aff. Op. Gen Couns. Prec. 40-97, VAOPGCPREC 40-97, 1997
    PREC 1-96    Effective Date where Award to a Surviving Spouse results in Termination of an Award based on a deemed Valid Marriage     Citation: Vet. Aff. Op. Gen Couns. Prec. 1-96, VAOPGCPREC 1-96, 1996 
    PREC 2-96    Entitlement to Compensation of Veteran who violates Parole     Citation: Vet. Aff. Op. Gen Couns. Prec. 2-96, VAOPGCPREC 2-96, 1996
    PREC 3-96    Application of Health Insurance Payments to Veterans' Copayment Obligations     Citation: Vet. Aff. Op. Gen Couns. Prec. 3-96, VAOPGCPREC 3-96, 1996
    PREC 4-96    Preservation of Disability Ratings under 38 U.S.C. § 110     Citation: Vet. Aff. Op. Gen Couns. Prec. 4-96, VAOPGCPREC 4-96, 1996
    PREC 5-96    Various Applications of VAOPGCPREC 22-95 -- Payment of Attorney Fees by the Department of Veterans Affairs from Past-due Benefits in Cases Remanded by the Court of Veterans' Appeals      Citation: Vet. Aff. Op. Gen Couns. Prec. 5-96, VAOPGCPREC 5-96, 1996
    .PREC 6-96   Issues related to Floyd v. Brown, 9 Vet. App. 88 (1996)     Citation: Vet. Aff. Op. Gen Couns. Prec. 6-96, VAOPGCPREC 6-96, 1996
    PREC 7-96    Separate and Distinct Transactions requiring Notification of Waiver Rights    Citation: Vet. Aff. Op. Gen Couns. Prec. 7-96, VAOPGCPREC 7-96, 1996
    PREC 8-96    Disposition of Unnegotiated Checks upon the death of the Guardian of A Beneficiary    Citation: Vet. Aff. Op. Gen Couns. Prec. 8-96, VAOPGCPREC 8-96, 1996
    PREC 9-96 Concurrent Payment of VA Disability Compensation and Reservists' Special Separation Pay (RSSP) and Reservists' Involuntary Separation Pay (RISP) under Pub. L. No. 102-464   AMENDED (1/09/2014) Citation: Vet. Aff. Op. Gen Couns. Prec. 9-96, VAOPGCPREC 9-96, 1996  Link to Original 
    PREC 10-96    Statutory Bars to Benefits: Effect of Substituted Discharge under 10 U.S.C. § 874(b)     Citation: Vet. Aff. Op. Gen Couns. Prec. 10-96, VAOPGCPREC 10-96, 1996
    PREC 11-96    Dependency and Indemnity Compensation -- Disabilities resulting from Alcohol or Drug Abuse - Pub. L. No. 101-508 § 8052     Citation: Vet. Aff. Op. Gen Couns. Prec. 11-96, VAOPGCPREC 11-96, 1996
    PREC 12-96 Recoupment of Armed Forces Severance Pay from Veterans' Disability Compensation AMENDED (1/09/2014)  Citation: Vet. Aff. Op. Gen Couns. Prec. 12-96, VAOPGCPREC 12-96, 1996 Link to Original
    PREC 13-96    Severance of Entitlement to Benefits under 38 U.S.C. § 1151   WITHDRAWN August 2010  Citation: Vet. Aff. Op. Gen Couns. Prec. 13-96, VAOPGCPREC 13-96, 1996
    PREC 14-96    Payment of Attorney Fees from proceeds of a National Service Life Insurance Policy     Citation: Vet. Aff. Op. Gen Couns. Prec. 14-96, VAOPGCPREC 14-96, 1996
    PREC 1-95    Surviving Spouse's Improved Pensions amount where Veterans' Surviving Child receives Protected Apportionment of § 306 Pensions     Citation: Vet. Aff. Op. Gen Couns. Prec. 1-95, VAOPGCPREC 1-95, 1995
    PREC 2-95    Applicability of the $1,500 Rule" where an Incompetent Veteran is Hospitalized in a Private, Foreign Hospital at VA Expense     Citation: Vet. Aff. Op. Gen Couns. Prec. 2-95, VAOPGCPREC 2-95, 1995
    PREC 3-95    Payment of Death Benefits to Remarried Spouse - Effect of Annulment     Citation: Vet. Aff. Op. Gen Couns. Prec. 3-95, VAOPGCPREC 3-95, 1995
    PREC 4-95    Entitlement to Veterans' Mortgage Life Insurance   Citation: Vet. Aff. Op. Gen Couns. Prec. 4-95, VAOPGCPREC 4-95, 1995
    PREC 5-95    Protection of Disability Rating where Benefits are discontinued due to Return to Active Duty     Citation: Vet. Aff. Op. Gen Couns. Prec. 5-95, VAOPGCPREC 5-95, 1995
     PREC 6-95    Classification of Service -- Attendance at the United States Military Academy Preparatory School or Naval Academy Preparatory School     Citation: Vet. Aff. Op. Gen Couns. Prec. 6-95, VAOPGCPREC 6-95, 1995
    PREC 7-95    Fees for obtaining Records - Duty to Assist Claimants    Citation: Vet. Aff. Op. Gen Couns. Prec. 7-95, VAOPGCPREC 7-95, 1995
    PREC 8-95    Proper Interpretation of 38 C.F.R. §§ 21.4234(b), 21.5232, 21.7114, and 21.7614     Citation: Vet. Aff. Op. Gen Couns. Prec. 8-95, VAOPGCPREC 8-95, 1995
    PREC 9-95    Impact of Inherited Life Estate on Income and Net Worth for improved Pension Purposes     Citation: Vet. Aff. Op. Gen Couns. Prec. 9-95, VAOPGCPREC 9-95, 1995
    PREC 10-95    Use of Diagnostic and Statistical Manual in Claims based on Mental Disorders     Citation: Vet. Aff. Op. Gen Couns. Prec. 10-95, VAOPGCPREC 10-95, 1995
    PREC 11-95    Duty to Assist -- Contemporaneous Examination Requirement    Citation: Vet. Aff. Op. Gen Couns. Prec. 11-95, VAOPGCPREC 11-95, 1995
    PREC 12-95    Clear and Unmistakable Error -- Constructive Notice of VA Medical Records    Citation: Vet. Aff. Op. Gen Couns. Prec. 12-95, VAOPGCPREC 12-95, 1995
    PREC 13-95    Specially Adapted Housing Death Case     Citation: Vet. Aff. Op. Gen Couns. Prec. 13-95, VAOPGCPREC 13-95, 1995
    PREC 14-95    Reviewability of Unappealed Regional Office Decisions for Clear and Unmistakable Error - Effect of Subsequent Board of Veterans' Appeals Action     Citation: Vet. Aff. Op. Gen Couns. Prec. 14-95, VAOPGCPREC 14-95, 1995
    PREC 15-95    Applicability of the final Stipulation and Order Entered in the Nehmer litigation     Citation: Vet. Aff. Op. Gen Couns. Prec. 15-95, VAOPGCPREC 15-95, 1995
    PREC 16-95    School Supplement for VA Work-Study Students     Citation: Vet. Aff. Op. Gen Couns. Prec. 16-95, VAOPGCPREC 16-95, 1995
    PREC 17-95    Application of 38 U.S.C. § 7722     Citation: Vet. Aff. Op. Gen Couns. Prec. 17-95, VAOPGCPREC 17-95, 1995
    PREC 18-95    Termination Date in computing Past-Due Benefits     Citation: Vet. Aff. Op. Gen Couns. Prec. 18-95, VAOPGCPREC 18-95, 1995
    PREC 19-95    Time Limitations on Claims resulting from Nonnegotiation of Benefit Checks by the Payee     Citation: Vet. Aff. Op. Gen Couns. Prec. 19-95, VAOPGCPREC 19-95, 1995
    PREC 20-95    Medical Records Review prior to Rating Examinations     Citation: Vet. Aff. Op. Gen Couns. Prec. 20-95, VAOPGCPREC 20-95, 1995
    PREC 21-95    Multiple Overpayments - Notification of Waiver Rights      Citation: Vet. Aff. Op. Gen Couns. Prec. 21-95, VAOPGCPREC 21-95, 1995
    PREC 22-95    Effect of Secondary Entitlements and Changes in Representational Status on the department of Veterans Affairs' Obligation to pay Attorney fees from Past-Due Benefits     Citation: Vet. Aff. Op. Gen Couns. Prec. 22-95, VAOPGCPREC 22-95, 1995
    PREC 23-95    Application of Estate Limitation to Incompetent Veteran receiving Rehabilitation Services      Citation: Vet. Aff. Op. Gen Couns. Prec. 23-95, VAOPGCPREC 23-95, 1995
    PREC 24-95    Adjustment of Benefits under 38 C.F.R. §§ 3.557 and 3.853 for Certain Incompetent, Institutionalized Veterans     Citation: Vet. Aff. Op. Gen Couns. Prec. 24-95, VAOPGCPREC 24-95, 1995
    PREC 25-95    "Obvious Error" and Reconsideration of Board of Veterans' Appeals decisions based upon a Subsequently Invalidated Regulation     Citation: Vet. Aff. Op. Gen Couns. Prec. 25-95, VAOPGCPREC 25-95, 1995
    PREC 26-95    VA Housing Loans and Specially Adapted Housing Grants for Property held in Revocable Family Living Trusts     Citation: Vet. Aff. Op. Gen Couns. Prec. 26-95, VAOPGCPREC 26-95, 1995
    PREC 1-94    Improved-Pension Income -- Application of $2,000 Exclusion of Tribal per capita Payments under 25 U.S.C. § 1407  Citation: Vet. Aff. Op. Gen Couns. Prec. 1-94, VAOPGCPREC 1-94, 1994
    PREC 2-94    Special Monthly Compensation under 38 U.S.C. § 1114(s)  Citation: Vet. Aff. Op. Gen Couns. Prec. 2-94, VAOPGCPREC 2-94, 1994
    PREC 3-94    Proposal to accumulate and distribute annually Monthly Payments to certain National Service Life Insurance beneficiaries  Citation: Vet. Aff. Op. Gen Couns. Prec. 3-94, VAOPGCPREC 3-94, 1994
    PREC 4-94    Claim for Benefits withheld from Individual in Foreign Country      Citation: Vet. Aff. Op. Gen Couns. Prec. 4-94, VAOPGCPREC 4-94, 1994
    PREC 5-94    Effective Date of Service Connection for Non-Hodgkin's Lymphoma under 38 C.F.R. § 3.313  Citation: Vet. Aff. Op. Gen Couns. Prec. 5-94, VAOPGCPREC 5-94, 1994
    PREC 6-94    Application of former Rating Schedule Provisions governing Loss of Part of Skull - Diagnostic Code 5296  Citation: Vet. Aff. Op. Gen Couns. Prec. 6-94, VAOPGCPREC 6-94, 1994
    PREC 7-94    Set-Off of Federal Tort Claims Act Damages -- 38 U.S.C. § 1151     Citation: Vet. Aff. Op. Gen Couns. Prec. 7-94, VAOPGCPREC 7-94, 1994
    PREC 8-94    Vocational Assessments in Individual Unemployability Claims -- Poler v. Derwinski, No. 91-1113 (Vet.App. June 26, 1992) remanded  Citation: Vet. Aff. Op. Gen Couns. Prec. 8-94, VAOPGCPREC 8-94, 1994
    PREC 9-94    Effect of Court of Veterans Appeals' Invalidation of VA Regulations or Statutory Interpretations  Citation: Vet. Aff. Op. Gen Couns. Prec. 9-94, VAOPGCPREC 9-94, 1994
    PREC 10-94    Effective Dates of Awards based on Judicial Precedents  Citation: Vet. Aff. Op. Gen Couns. Prec. 10-94, VAOPGCPREC 10-94, 1994
    PREC 11-94    Authority to Deny Claimant's Request for Equitable Relief  Citation: Vet. Aff. Op. Gen Couns. Prec. 11-94, VAOPGCPREC 11-94, 1994
    PREC 12-94    Accrued Benefits -- Evidence in the File at Date of Death - Unreimbursed Medical Expenses WITHDRAWN  Citation: Vet. Aff. Op. Gen Couns. Prec. 12-94, VAOPGCPREC 12-94, 1994
    PREC 13-94  WITHDRAWN 3/13/2000   Period of Active Service - Effect of Correction of Board Action   Citation: Vet. Aff. Op. Gen Couns. Prec. 13-94, VAOPGCPREC 13-94, 1994
    PREC 14-94    Determination of Period of Active Service under 38 U.S.C. § 3.9 for Philippine Veterans detained or interned by the Enemy  Citation: Vet. Aff. Op. Gen Couns. Prec. 14-94, VAOPGCPREC 14-94, 1994
    PREC 15-94    VA's Right to Subrogation on a Loan Guaranty Claim  Citation: Vet. Aff. Op. Gen Couns. Prec. 15-94, VAOPGCPREC 15-94, 1994
    PREC 16-94    Apportionment of Benefits  Citation: Vet. Aff. Op. Gen Couns. Prec. 16-94, VAOPGCPREC 16-94, 1994
    PREC 17-94    Conflicting Interests (38 U.S.C. § 3683, 38 C.F.R. § 21.4005)      Citation: Vet. Aff. Op. Gen Couns. Prec. 17-94, VAOPGCPREC 17-94, 1994
    PREC 18-94   Classification of Service -- Attendance at the United States Air Force Academy Preparatory School   Citation: Vet. Aff. Op. Gen Couns. Prec. 18-94, VAOPGCPREC 18-94, 1994
    PREC 19-94    Payment of Attorney Fees in cases where a repeat Claim is filed and the Requirements of 38 U.S.C. § 5108 are Inapplicable   Citation: Vet. Aff. Op. Gen Couns. Prec. 19-94, VAOPGCPREC 19-94, 1994
    PREC 20-94    Authority of Board of Veterans' Appeals to proceed on remanded Orders from Court of Veterans Appeals in cases Appealed to the Court of Appeals for the Federal Circuit   Citation: Vet. Aff. Op. Gen Couns. Prec. 20-94, VAOPGCPREC 20-94, 1994
    PREC 21-94    Aid & Attendance Allowance for Improved Pension Purposes       Citation: Vet. Aff. Op. Gen Couns. Prec. 21-94, VAOPGCPREC 21-94, 1994
    PREC 22-94    Effect of Judicial Invalidation of Regulations governing Effective Dates of Awards of REPS Benefits   Citation: Vet. Aff. Op. Gen Couns. Prec. 22-94, VAOPGCPREC 22-94, 1994
    PREC 23-94   Gardner Ruling  Citation: Vet. Aff. Op. Gen Couns. Prec. 23-94, VAOPGCPREC 23-94, 1994
    PREC 1-93 Treatment of Proceeds of Cashed-in Life Insurance Policy for Improved Pension   SUPERSEDED IN PART BY PREC 2-2010  Citation: Vet. Aff. Op. Gen Couns. Prec. 1-93, VAOPGCPREC 1-93, 1993
    PREC 2-93    Entitlement to Benefits based upon Tobacco use while in Service       Citation: Vet. Aff. Op. Gen Couns. Prec. 2-93, VAOPGCPREC 2-93, 1993
    PREC 3-93    Applicability of 38 C.F.R. § 3.552(b)(1), Governing Adjustment of Aid and Attendance when a third Party reimburses the Government for the Cost of VA Hospitalization     Citation: Vet. Aff. Op. Gen Couns. Prec. 3-93, VAOPGCPREC 3-93, 1993
    PREC 4-93    Treatment of Alaskan Native Corporation Dividend Distributions     Citation: Vet. Aff. Op. Gen Couns. Prec. 4-93, VAOPGCPREC 4-93, 1993
    PREC 5-93    Just-Debts Exclusion for Improved Pension Income Purposes     Citation: Vet. Aff. Op. Gen Couns. Prec. 5-93, VAOPGCPREC 5-93, 1993
    PREC 6-93    Accrued Benefits -- Evidence in the File at Date of Death   WITHDRAWN IN PART Citation: Vet. Aff. Op. Gen Couns. Prec. 6-93, VAOPGCPREC 6-93, 1993
    PREC 7-93    Service in Vietnam under 38 C.F.R. § 3.313       Citation: Vet. Aff. Op. Gen Couns. Prec. 7-93, VAOPGCPREC 7-93, 1993
    PREC 8-93    Protection of Service Connection under 38 U.S.C. § 1159 and 38 C.F.R. § 3.957     Citation: Vet. Aff. Op. Gen Couns. Prec. 8-93, VAOPGCPREC 8-93, 1993
    PREC 9-93    Construction of the Schedule for Rating Disability -- "Definite" Impairment     Citation: Vet. Aff. Op. Gen Couns. Prec. 9-93, VAOPGCPREC 9-93, 1993
    PREC 10-93    Presumption of Permanent and Total Disability -- 38 C.F.R. § 3.326(b)     Citation: Vet. Aff. Op. Gen Couns. Prec. 10-93, VAOPGCPREC 10-93, 1993
    PREC 11-93 Discharge as Conscientious Objector; Meaning of Active Continuous Service     Citation: Vet. Aff. Op. Gen Couns. Prec. 11-93, VAOPGCPREC 11-93, 1993
    PREC 12-93    Payment of attorney fees from past-due benefits when Veteran's Indebtedness to the United States exceeds total amount of past-due Benefits      Citation: Vet. Aff. Op. Gen Couns. Prec. 12-93, VAOPGCPREC 12-93, 1993
    PREC 1-92    Claim for Death Benefits     Citation: Vet. Aff. Op. Gen. Couns. Prec. 1-92, VAOPGCPREC 1-92, 1992
    PREC 2-92    Interpretation of 38 U.S.C. § 7102 [was § 4002]      Citation: Vet. Aff. Op. Gen. Couns. Prec. 2-92, VAOPGCPREC 2-92, 1992
    PREC 3-92    OPINION WITHDRAWN
    PREC 4-92    Child's right to receive Improved Death Pension when Surviving Spouse receives Dependency Compensation    Citation: Vet. Aff. Op. Gen. Couns. Prec. 4-92, VAOPGCPREC 4-92, 1992
    PREC 5-92    De Novo Review of Sufficiency Evidence to reopen Claim      Citation: Vet. Aff. Op. Gen. Couns. Prec. 5-92, VAOPGCPREC 5-92, 1992
    PREC 6-92    Can VA Regional Officer Rating Decision reducing a Total Disability Rating be upheld in the absence of a Specific Reference in the Decision to 38 C.F.R. 3.343(a)    Citation: Vet. Aff. Op. Gen. Couns. Prec. 6-92, VAOPGCPREC 6-92, 1992
    PREC 7-92    Applicability of VA Manual M21-1, Part 1, Para. 50.45      Citation: Vet. Aff. Op. Gen. Couns. Prec. 7-92, VAOPGCPREC 7-92, 1992
    PREC 8-92    Entitlement to REPS Benefits      Citation: Vet. Aff. Op. Gen. Couns. Prec. 8-92, VAOPGCPREC 8-92, 1992
    PREC 9-92    Effect of Sabol v. Derwinski, US Vet.App. No. 90-11 (March 3, 1992)      Citation: Vet. Aff. Op. Gen. Couns. Prec. 9-92, VAOPGCPREC 9-92, 1992
    PREC 10-92    Entitlement to Chapter 30 Benefits     Citation: Vet. Aff. Op. Gen. Couns. Prec. 10-92, VAOPGCPREC 10-92, 1992
    PREC 11-92    Scope of Authority vested in Party holding Power of Attorney      Citation: Vet. Aff. Op. Gen. Couns. Prec. 11-92, VAOPGCPREC 11-92, 1992
    PREC 12-92    Entitlement to Chapter 35 Benefits      Citation: Vet. Aff. Op. Gen. Couns. Prec. 12-92, VAOPGCPREC 12-92, 1992
    PREC 13-92    Protection of Service Connection & Redesignation of Diagnostic to accurately reflect a Veteran's Current Diagnosis    Citation: Vet. Aff. Op. Gen. Couns. Prec. 13-92, VAOPGCPREC 13-92, 1992
    PREC 14-92    Concurrent Payment of VA Disability Compensation & Voluntary Separation Incentive or Special Separation Benefits      Citation: Vet. Aff. Op. Gen. Couns. Prec. 14-92, VAOPGCPREC 14-92, 1992
    PREC 15-92    Effect on Pension Eligibility of Property held as a Life Estate     Citation: Vet. Aff. Op. Gen. Couns. Prec. 15-92, VAOPGCPREC 15-92, 1992
    PREC 16-92    Authority of the Board of Veterans' Appeals to address matters not considered by the Agency of Original Jurisdiction    Citation: Vet. Aff. Op. Gen. Couns. Prec. 16-92, VAOPGCPREC 16-92, 1992
    PREC 17-92    Minimum Active Duty Service Requirement       Citation: Vet. Aff. Op. Gen. Couns. Prec. 17-92, VAOPGCPREC 17-92, 1992
    PREC 18-92    Attorney Fee Agreements in cases remanded by the Board of Veterans' Appeals      Citation: Vet. Aff. Op. Gen. Couns. Prec. 18-92, VAOPGCPREC 18-92, 1992
    PREC 19-92    Protection of Disability Ratings under Pub. L. No. 102-86 § 103, State. 414-415 (1991)   Citation: Vet. Aff. Op. Gen. Couns. Prec. 19-92, VAOPGCPREC 19-92, 1992
    PREC 20-92    Clothing Allowance for Incarcerated Veterans      Citation: Vet. Aff. Op. Gen. Couns. Prec. 20-92, VAOPGCPREC 20-92, 1992
    PREC 21-92    Payment of Burial Benefits on behalf of an Incompetent Veteran whose Compensation has been Suspended    Citation: Vet. Aff. Op. Gen. Couns. Prec. 21-92, VAOPGCPREC 21-92, 1992
    PREC 22-92    Payment pursuant to 38 U.S.C. § 5121-5122 of amounts Represent Ted by Uncashed VA Benefit Checks      Citation: Vet. Aff. Op. Gen. Couns. Prec. 22-92, VAOPGCPREC 22-92, 1992
    PREC 23-92    Eligibility of Institutionalized Veterans for OId & Attendance for a higher level of care under 38 U.S.C. § 1114      Citation: Vet. Aff. Op. Gen. Couns. Prec. 23-92, VAOPGCPREC 23-92, 1992
    PREC 24-92    Pub. L. No. 10-547 -- Financing Discount Points      Citation: Vet. Aff. Op. Gen. Couns. Prec. 24-92, VAOPGCPREC 24-92, 1992
    PREC 25-92    Effective Date of SGLI Increase provided by Pub. L. No. 102-25      Citation: Vet. Aff. Op. Gen. Couns. Prec. 25-92, VAOPGCPREC 2-592, 1992
    PREC 26-92    Precedential Nature of the decisions of the Court of Veterans' Appeals    Citation: Vet. Aff. Op. Gen. Couns. Prec. 26-92, VAOPGCPREC 26-92, 1992
    PREC 27-92    Payment of Attorney Fees     Citation: Vet. Aff. Op. Gen. Couns. Prec. 27-92, VAOPGCPREC 27-92, 1992
    PREC 28-92    Determination of Veteran's Pay Grade     Citation: Vet. Aff. Op. Gen. Couns. Prec. 28-92, VAOPGCPREC 28-92, 1992
    PREC 1-91    Cramdowns under Chapter 13 of the Bankruptcy Code                   Citation: Vet. Aff. Op. Gen. Couns. Prec. 1-91, VAOPGCPREC 1-91, 1991
    PREC 2-91    Is VA liable to Pay Interest to Lenders on the Miscalculation of "Net Value?”       Citation: Vet. Aff. Op. Gen. Couns. Prec. 2-91, VAOPGCPREC 2-91,  1991
    PREC 3-91   Secretary's authority to comply with certain Conditions Specified in Loan Sale Agreements for AHT VIII & to amend AHT VI & AHT VII Documents Citation :  Vet. Aff. Op. Gen. Couns. Prec. 3-91, VAOPGCPREC 3-91, 1991
    PREC 4-91    Failure to submit to Medical Examination - Insistence on the Presence of an Attorney & Use of a Recording Device     Citation: Vet. Aff. Op. Gen. Couns. Prec. 4-91, VAOPGCPREC 4-91, 1991
    PREC 5-91    Payment of Charges to State Soldiers' Homes from Appropriated Funds when Payments have been discontinued under P.L. 86-146                  Citation: Vet. Aff. Op. Gen. Couns. Prec. 5-91, VAOPGCPREC 5-91, 1991
    PREC 6-91    Gratuitous Benefits, Pub. L. 86-146       Citation: Vet. Aff. Op. Gen. Couns. Prec. 6-91, VAOPGCPREC 6-91, 1991
    PREC 7-91    Eligibility for Invalid Lift      Citation: Vet. Aff. Op. Gen. Couns. Prec. 7-91, VAOPGCPREC 7-91, 1991
    PREC 8-91    Clarification of Certain Provisions of P.L. 86-639 & DM Circular 10-2009      Citation: Vet. Aff. Op. Gen. Couns. Prec. 8-91, VAOPGCPREC 8-91, 1991
    PREC 9-91    Gratuitous Benefits, P.L. 86-146      Citation: Vet. Aff. Op. Gen. Couns. Prec. 9-91, VAOPGCPREC 9-91, 1991
    PREC 10-91    Application of 38 USC 102(a) to Claims for PFOP      Citation: Vet. Aff. Op. Gen. Couns. Prec. 10-91, VAOPGCPREC 10-91, 1991
    PREC 11-91    Change of Use of State Nursing Home Care Units Constructed with Grant Funds      Citation: Vet. Aff. Op. Gen. Couns. Prec. 11-91, VAOPGCPREC 11-91, 1991
    PREC 12-91    Entitlement of a Reservist to Payment of Unauthorized Medical Expenses       Citation: Vet. Aff. Op. Gen. Couns. Prec. 12-91, VAOPGCPREC 12-91, 1991
    PREC 13-91    Entitlement of Veterans to Drugs & Medicines under 38 USC 612(h)    Citation: Vet. Aff. Op. Gen. Couns. Prec. 13-91, VAOPGCPREC 13-91, 1991
    PREC 14-91    Transportation of Volunteers       Citation: Vet. Aff. Op. Gen. Couns. Prec. 14-91, VAOPGCPREC 14-91, 1991
    PREC 15-91    Legal Authority to Contract for Guard Services      Citation: Vet. Aff. Op. Gen. Couns. Prec. 15-91, VAOPGCPREC 15-91, 1991
    PREC 16-91    Parental Consent for Surgery on a Minor Veteran      Citation: Vet. Aff. Op. Gen. Couns. Prec. 16-91, VAOPGCPREC 16-91, 1991
    PREC 17-91    Home Dialysis       Citation: Vet. Aff. Op. Gen. Couns. Prec. 17-91, VAOPGCPREC 17-91, 1991
    PREC 18-91    Authority of VA to inspect Packages     Citation: Vet. Aff. Op. Gen. Couns. Prec. 18-91, VAOPGCPREC18-91, 1991
    PREC 19-91    Removal of Automobiles from VA Grounds       Citation: Vet. Aff. Op. Gen. Couns. Prec. 19-91, VAOPGCPREC 19-91, 1991
    PREC 20-91    Statute of Limitations for Claims against the General Post Fund Citation: Vet. Aff. Op. Gen. Couns. Prec. 20-91, VAOPGCPREC 20-91, 1991
    PREC 21-91    Dental Service under 38 USC § 612(b)    Citation: Vet. Aff. Op. Gen. Couns. Prec. 21-91, VAOPGCPREC 21-91, 1991
    PREC 22-91    Autopsy on Veteran who dies outside VA Facility while in Post-Hospital Care Status      Citation: Vet. Aff. Op. Gen. Couns. Prec. 22-91, VAOPGCPREC 22-91, 1991
    PREC 23-91    Community Contract Nursing Home Program Additional Payments    Citation: Vet. Aff. Op. Gen. Couns. Prec. 23-91, VAOPGCPREC 23-91, 1991
    PREC 24-91    Use of Cooperative Living/Therapeutic Community Facilities       Citation: Vet. Aff. Op. Gen. Couns. Prec. 24-91, VAOPGCPREC 24-91, 1991
    PREC 25-91    Donation of Kidneys for Transplant      Citation: Vet. Aff. Op. Gen. Couns. Prec. 25-91, VAOPGCPREC 25-91, 1991
    PREC 26-91    Advisory Committee on Cemeteries & Memorials - Interpret 38 USC 1001 [now 2301] - Cong Rpt 030-91       Citation: Vet. Aff. Op. Gen. Couns. Prec. 26-91, VAOPGCPREC 26-91, 1991
    PREC 27-91    Application of 38 USC 210 ( c)(3)(A)    Citation: Vet. Aff. Op. Gen. Couns. Prec. 27-91, VAOPGCPREC 27-91, 1991
    PREC 28-91    Provision of Drugs & Medicines to Residents of State Veterans Homes          Citation: Vet. Aff. Op. Gen. Couns. Prec. 28-91, VAOPGCPREC 28-91, 1991
    PREC 29-91    Change of Use of State Nursing Home Care Units Constructed with Grant Funds     Citation: Vet. Aff. Op. Gen. Couns. Prec. 29-91, VAOPGCPREC 29-91, 1991
    PREC 30-91    Applicability of Limitations of 38 USC § 601 [now § 1701](4)( c)(iii) to Puerto Rico      Citation: Vet. Aff. Op. Gen. Couns. Prec. 30-91, VAOPGCPREC 30-91, 1991
    PREC 31-91    Interpretation of 38 USC 618    Citation: Vet. Aff. Op. Gen. Couns. Prec. 31-91, VAOPGCPREC 31-91, 1991
    PREC 32-91    Hospital Based Home Care Program for Spinal Cord Injury Rehabilitation - Home Renovations 38 USC § 617 [now § 1717]       Citation: Vet. Aff. Op. Gen. Couns. Prec. 32-91, VAOPGCPREC 32-91, 1991
    PREC 33-91    Juvenile Offenses occurring on VA Property     Citation: Vet. Aff. Op. Gen. Couns. Prec. 33-91, VAOPGCPREC 33-91, 1991
    PREC 34-91    Provision of Additional Water and/or Electrical Service for Home Dialysis Patients       Citation: Vet. Aff. Op. Gen. Couns. Prec. 34-91, VAOPGCPREC 34-91, 1991
    PREC 35-91    Continued Hospitalization of a Veteran      Citation: Vet. Aff. Op. Gen. Couns. Prec. 35-91, VAOPGCPREC 35-91, 1991
    PREC 36-91    Application for an Automobile      Citation: Vet. Aff. Op. Gen. Couns. Prec. 36-91, VAOPGCPREC 36-91, 1991
    PREC 37-91    Responsibility to Return Competent Patients to the Hospital   Citation: Vet. Aff. Op. Gen. Couns. Prec. 37-91, VAOPGCPREC 37-91, 1991
    PREC 38-91 VI State Home Construction Overruled by PREC 55-91 Citation: Vet. Aff. Op. Gen. Couns. Prec. 38-91, VAOPGCPREC 38-91, 1991
    PREC 39-91    Banking Facilities in VA Hospital   Citation: Vet. Aff. Op. Gen. Couns. Prec. 39-91, VAOPGCPREC 39-91, 1991
    PREC 40-91    Authority to Limit the provision of Outpatient Services under 38 USC 109      Citation: Vet. Aff. Op. Gen. Couns. Prec. 40-91, VAOPGCPREC 40-91, 1991
    PREC 41-91    Furnishing Drugs & Medicines Prescribed by Private Physicians -38 USC § 612 [now § 1712] (h)        Citation: Vet. Aff. Op. Gen. Couns. Prec. 41-91, VAOPGCPREC 41-91, 1991
    PREC 42-91    Establishment of Exercise Programs at VA Medical Centers for VA Employees     Citation: Vet. Aff. Op. Gen. Couns. Prec. 42-91, VAOPGCPREC 42-91, 1991
    PREC 43-91    VA Prosthetic & Medical Equipment Loan Program - Consequences of Damage to Loaned Equipment - 38 USC § 1902 [now § 3902] to Veterans     Citation: Vet. Aff. Op. Gen. Couns. Prec. 43-91, VAOPGCPREC 43-91, 1991
    PREC 44-91    Guardianship Policy - Advice given by VA Social Workers       Citation: Vet. Aff. Op. Gen. Couns. Prec. 44-91, VAOPGCPREC 44-91, 1991
    PREC 45-91    Automobile Allowance under 38 USC 1902(a) for a Leased Automobile    Citation: Vet. Aff. Op. Gen. Couns. Prec. 45-91, VAOPGCPREC 45-91, 1991
    PREC 46-91    Taking of Patients' blood, urine & breath specimens for Drug & Alcohol Analysis for Admittance to & while in a VA Domiciliary      Citation: Vet. Aff. Op. Gen. Couns. Prec. 46-91, VAOPGCPREC 46-91, 1991
    PREC 47-91    Applicability of State Laws to VA Facilities in Massachusetts administering Psychotropic Drugs     Citation: Vet. Aff. Op. Gen. Couns. Prec. 47-91, VAOPGCPREC 47-91, 1991
    PREC 48-91    Legal Liability in providing References for Staff Appts .            Citation: Vet. Aff. Op. Gen. Couns. Prec. 48-91, VAOPGCPREC 48-91, 1991
    PREC 49-91    Patient Meal Preparation Program as a form of Rehabilitation     Citation: Vet. Aff. Op. Gen. Couns. Prec. 49-91, VAOPGCPREC 49-91, 1991
    PREC 50-91   Protection of Service-Connection for a non-existent Disability - 38 USC 359 [now 1159]      Citation: Vet. Aff. Op. Gen. Couns. Prec. 50-91, VAOPGCPREC 50-91, 1991
    PREC 51-91    Reimbursement of costs incurred by a Veteran's Wife in the Prepurchase of a Veteran's Headstone under 38 USC 906 [now 2306](d)            Citation: Vet. Aff. Op. Gen. Couns. Prec. 51-91, VAOPGCPREC 51-91, 1991
    PREC 52-91    Setoff of Federal Tort Claims Act Damages under 38 USC 351 [now 1151]       Citation: Vet. Aff. Op. Gen. Couns. Prec. 52-91, VAOPGCPREC 52-91, 1991
    PREC 53-91    Requirement of a Supplemental Statement of the case following remand by Court of Veterans Appeals        Citation: Vet. Aff. Op. Gen. Couns. Prec. 53-91, VAOPGCPREC 53-91, 1991
    PREC 54-91     Reporting Waived Loan Guaranty Debts to the IRS      Citation: Vet. Aff. Op. Gen. Couns. Prec. 54-91, VAOPGCPREC 54-91, 1991
    PREC 55-91    Virgin Islands - State Home Construction Overruled by Prec 38-91 Citation: Vet. Aff. Op. Gen. Couns. Prec. 55-91, VAOPGCPREC 55-91, 1991
    PREC 56-91    Spouse's Period Eligibility for Dependent's Educational Assistance Allowance- 38 USC 1712 (b)/(d)     Citation: Vet. Aff. Op. Gen. Couns. Prec. 56-91, VAOPGCPREC 56-91, 1991
    PREC 57-91   Eligibility for Burial Benefits based on Service in Amer Merchant Marine - Period for Submission of Claims      Citation: Vet. Aff. Op. Gen. Couns. Prec. 57-91, VAOPGCPREC 57-91, 1991
    PREC 58-91    Meaning of "Legal Impediment" for Purposes of Deemed Valid Marriage under 38 USC 103(a) - Common Law Marriage       Citation: Vet. Aff. Op. Gen. Couns. Prec. 58-91, VAOPGCPREC 58-91, 1991
    PREC 59-91    Reduction of Compensation during Incarceration 38 USC 3113 [now 5313] - Community Control     Citation: Vet. Aff. Op. Gen. Couns. Prec. 59-91, VAOPGCPREC 59-91, 1991
    PREC 60-91    Public Law 101-625 - RESPA Amendments       Citation: Vet. Aff. Op. Gen. Couns. Prec. 60-91, VAOPGCPREC 60-91, 1991
    PREC 61-91    Effect of a discharge under Dishonorable Conditions on Eligibility for Gratuitous Veterans' Benefits based on a prior period of Honorable Service    Citation: Vet. Aff. Op. Gen. Couns. Prec. 61-91, VAOPGCPREC 61-91, 1991
    PREC 62-91    Consideration of VA Compensation Benefits in computation of Tax credits      Citation: Vet. Aff. Op. Gen. Couns. Prec. 62-91, VAOPGCPREC 62-91, 1991
    PREC 63-91    Immunity from Liability under 38 USC 4116 [now 7316] & 28 USC 2679 XXXXX      Citation: Vet. Aff. Op. Gen. Couns. Prec. 63-91, VAOPGCPREC 63-91, 1991
    PREC 64-91    Estates of Incompetent Veterans - Implementation of 38 USC 5505 & 38 CFR 13.109       Citation: Vet. Aff. Op. Gen. Couns. Prec. 64-91, VAOPGCPREC 64-91, 1991
    PREC 65-91    Electronic Claims & Facsimile Documents as Evidence      Citation: Vet. Aff. Op. Gen. Couns. Prec. 65-91, VAOPGCPREC 65-91, 1991
    PREC 66-91    Evaluation of Separately Ratable Disabilities        Citation: Vet. Aff. Op. Gen. Couns. Prec. 66-91,  VAOPGCPREC 66-91, 1991
    PREC 67-91 Recoupment of Disability Severance Pay from Disability Compensation Citation: Vet. Aff. Op. Gen. Couns. Prec. 67-91, VAOPGCPREC 67-91, 1991
    PREC 68-91    Clear & Unmistakable Error, Change in Diagnosis; Minimum Rating for Multiple Sclerosis      Citation: Vet. Aff. Op. Gen. Couns. Prec. 68-91, VAOPGCPREC 68-91, 1991
    PREC 69-91    Retroactive Payment of Chapter 35 due to Establishment of Service Connection for non-Hodgkin's Lymphoma       Citation: Vet. Aff. Op. Gen. Couns. Prec. 69-91, VAOPGCPREC 69-91, 1991
    PREC 70-91    Reconsiderations by the Board of Veterans Appeals      Citation: Vet. Aff. Op. Gen. Couns. Prec. 70-91, VAOPGCPREC 70-91, 1991
    PREC 71-91    Scope of 38 CFR 3.105(e)    Citation: Vet. Aff. Op. Gen. Couns. Prec. 71-91, VAOPGCPREC 71-91, 1991
    PREC 72-91    Interpretation of 38 USC 3681(a)(1)      Citation: Vet. Aff. Op. Gen. Couns. Prec. 72-91, VAOPGCPREC 72-91, 1991
    PREC 73-91    Effect on Pension Eligibility of Transfer of Assets into a Trust    Citation: Vet. Aff. Op. Gen. Couns. Prec. 73-91, VAOPGCPREC 73-91, 1991
    PREC 74-91    Insurance Coverage Information      Citation: Vet. Aff. Op. Gen. Couns. Prec. 74-91, VAOPGCPREC 74-91, 1991
    PREC 75-91    Unemployability due to Service-Connected Disability          Citation: Vet. Aff. Op. Gen. Couns. Prec. 75-91, VAOPGCPREC 75-91, 1991
    PREC 1-90 Presumptive Service Connection - Heriditofamilial Disease - 38 CFR § 3.309 Citation: Vet. Aff.Op. Gen. Couns. Prec. 1-90, VAOPGCPREC 1-90, 1990
    PREC 2-90 Administrative Error Decisions - 38 CFR § 3500(b)(2), 38 USC § 3012(b)(9) - (10) Citation: Vet. Aff. Op. Gen. Couns. 2-90, VAOPGCPREC 2-90, 1990
    PREC 3-90 Reduction of Benefits Pursuant to 38 USC §§ 3.113 & 505 - Not Guilty, InsanityCitation:Vet.Aff.Op.Gen.Couns.Prec. 3-90,VAOPGCPREC 3-90, 1990
    PREC 4-90 Offset of Medal of Honor Pension for Purposes of Collecting Debts due DVA Citation:Vet.Aff.Op.Gen.Couns.Prec. 4-90,VAOPGCPREC 4-90, 1990
    PREC 5-90 Waiver of Indebtedness Originally issued 3/21/89 as PREC 8-89 Citation:Vet.Aff.Op.Gen.Couns.Prec. 5-90,VAOPGCPREC 5-90, 1990
    PREC 6-90 Transfer of Residential Properties acquired under the Loan Guaranty Program to VHS&RA Citation:Vet.Aff.Op.Gen.Couns.Prec. 6-90,VAOPGCPREC 6-90, 1990
    PREC 7-90 Improved Pension Rate for Estranged Married Veterans - Application of 38 USC § 521 [now 1521](f)Citation:Vet.Aff.Op.Gen.Couns.Prec. 7-90,VAOPGCPREC 7-90, 1990
    PREC 8-90 VA Disposition of Residential Real Property owned by other Federal Agencies or Related Entities Citation:Vet.Aff.Op.Gen.Couns.Prec. 8-90,VAOPGCPREC 8-90, 1990
    PREC 9-90 Definition of Radiogenic Disease as used in 38 USC § 312(c)(2) & 38 CFR § 3.311(b)(2)Citation:Vet.Aff.Op.Gen.Couns.Prec. 9-90,VAOPGCPREC 9-90, 1990
    PREC 10-90 Reserve Disability Pay under 38 USC § 204 (g), (h) & (i) Citation:Vet.Aff.Op.Gen.Couns.Prec. 10-90,VAOPGCPREC 10-90, 1990
    PREC 11-90 Administrative Allowances by Board of Veterans AppealsCitation:Vet.Aff.Op.Gen.Couns.Prec. 11-90,VAOPGCPREC 11-90, 1990
    PREC 12-90 Waiver of Loan Guaranty Indebtedness following a Deed in lieu of Foreclosure Citation:Vet.Aff.Op.Gen.Couns.Prec. 12-90,VAOPGCPREC 12-90, 1990
    PREC 13-90 Application of Recoveries from Health Insurance to Category C Debts - Means Tests Citation:Vet. Aff.Op.Gen.Couns.Prec. 13-90,VAOPGCPREC 13-90, 1990
    PREC 14-90 Secretary's Authority to Comply with certain conditions specified in AHT VI Loan Sale Agreement Citation:Vet.Aff.Op.Gen.Couns.Prec. 14-90,VAOPGCPREC 14-90, 1990
    PREC 15-90 Benefit Determination involving Validity of Marriage of Transsexual VeteransCitation:Vet.Aff.Op.Gen.Couns.Prec. 15-90,VAOPGCPREC 15-90, 1990
    PREC 16-90 Active Duty Service Eligibility for the Work-Study Allowance Program - 38 USC § 1685 [now § 3484]Citation:Vet.Aff.Op.Gen.Couns.Prec. 16-90,VAOPGCPREC 16-90, 1990
    PREC 17-90 Time Period for Filing Claims for Reimbursement of Plat, Transportation & Headstone Expenses Citation:Vet.Aff.Op.Gen.Couns.Prec. 17-90,VAOPGCPREC 17-90, 1990
    PREC 18-90 Line of Duty Determination - Unauthorized Absence Citation:Vet.Aff.Op.Gen.Couns.Prec. 18-90,VAOPGCPREC 18-90, 1990
    PREC 19-90 Applicability of P.L. 101-237 § 111 to § 306 PensionCitation:Vet.Aff.Op.Gen.Couns.Prec. 19-90,VAOPGCPREC 19-90, 1990
    PREC 20-90 Deemed Valid Marriage - 38 USC 103(a) Citation:Vet.Aff.Op.Gen.Couns.Prec. 20-90,VAOPGCPREC 20-90, 1990
    PREC 21-90 Effective Date for Adjustment of Improved Pension Benefits based on change of Income due to Social Security COLAs Citation:et.Aff.Op.Gen.Couns.Prec. 21-90,VAOPGCPREC 21-90, 1990
    PREC 22-90 Reconsideration of Final Waiver Decision in Light of P.L. 101-237 - Pre 12/18/89 Waiver Decisions [overturned by Franklin v. Brown, No. 91-2002 (U.S. Vet. App. June 4, 1993]Citation:Vet.Aff.Op.Gen.Couns.Prec. 22-90,VAOPGCPREC 22-90, 1990
    PREC 23-90 Income for Improved Pension Purposes Citation:Vet.Aff.Op.Gen.Couns.Prec. 23-90,VAOPGCPREC 23-90, 1990
    PREC 24-90 Validity of Military Enlistment - Discharge under Honorable Conditions with Active Duty shown as Zero Days Citation:Vet.Aff.Op.Gen.Couns.Prec. 24-90,VAOPGCPREC 24-90, 1990
    PREC 25-90 Active Duty for VA Benefits - Reserve Duty as Flight Instructor Citation:Vet.Aff.Op.Gen.Couns.Prec. 25-90,VAOPGCPREC 25-90, 1990
    PREC 26-90 Concurrent Notice of Termination or Suspension of Educational Benefits - 38 USC § 1790 [now § 3690](b)(92) -Defective Notice Citation:Vet.Aff.Op.Gen.Couns.Prec. 26-90,VAOPGCPREC 26-90, 1990
    PREC 27-90 Determination of Basic Entitlement - 38 USC § 1661 [now § 3461](a) - "Corresponding Days"Citation:Vet.Aff.Op.Gen.Couns.Prec. 27-90,VAOPGCPREC 27-90, 1990
    PREC 28-90 Qualifying Service needed to obtain the Maximum Educational Assistance Entitlement Citation:Vet.Aff.Op.Gen.Couns.Prec. 28-90,VAOPGCPREC 28-90, 1990
    PREC 29-90 Waiver of Education Loan Indebtedness Citation:Vet.Aff.Op.Gen.Couns.Prec. 29-90,VAOPGCPREC 29-90, 1990
    PREC 30-90 Correct Interpretation of 38 USC 1673( c) & VAR 14233(C)(1) - Open Circuit TV Courses Citation:Vet.Aff.Op.Gen.Couns.Prec. 30-90,VAOPGCPREC 30-90, 1990
    PREC 31-90 Preservation of Disability Ratings - 38 USC 110 Citation:Vet.Aff.Op.Gen.Couns.Prec. 31-90,VAOPGCPREC 31-90, 1990
    PREC 32-90 Clarification of Work-study supervision for Outreach Activities Citation:Vet.Aff.Op.Gen.Couns.Prec. 32-90,VAOPGCPREC 32-90, 1990
    PREC 33-90 Education Loan - P&T Disability Citation:Vet.Aff.Op.Gen.Couns.Prec. 33-90,VAOPGCPREC 33-90, 1990
    PREC 34-90 Bankruptcy Procedures - Education Overpayments Citation:Vet.Aff.Op.Gen.Couns.Prec. 34-90,VAOPGCPREC 34-90, 1990
    PREC 35-90 Limitations on Educational Assistance under 38 USC § 1781 [now § 3681] Citation:Vet.Aff.Op.Gen.Couns.Prec. 35-90,VAOPGCPREC 35-90, 1990
    PREC 36-90 Limitations on Educational Assistance under 38 USC § 1781 [now § 3681] limitations - internships/residences Citation:Vet.Aff.Op.Gen.Couns.Prec. 36-90,VAOPGCPREC 36-90, 1990
    PREC 37-90 Applicability of Government Employees Training Act as a Limitation under 38 USC § 1781 [now § 3681] to payment of Educational Assistance Allowance Citation:Vet.Aff.Op.Gen.Couns.Prec. 37-90,VAOPGCPREC 37-90, 1990
    PREC 38-90 Liability of Training Establishment for Overpayments Citation:Vet.Aff.Op.Gen.Couns.Prec. 38-90,VAOPGCPREC 38-90, 1990
    PREC 39-90 Payments for CLEP Tests Administration Fees Citation:Vet.Aff.Op.Gen.Couns.Prec. 39-90,VAOPGCPREC 39-90, 1990
    PREC 40-90 Payment of Educational Assistance Allowances to Individuals participating in the Health Professions Scholarship Program Citation:Vet.Aff.Op.Gen.Couns.Prec. 40-90,VAOPGCPREC 40-90, 1990
    PREC 41-90 Continuity of Service within the Meaning of VA Regulation 11040 Citation:Vet.Aff.Op.Gen.Couns.Prec. 41-90,VAOPGCPREC 41-90, 1990
    PREC 42-90 Non-application of 38 USC § 1789 [now § 3689](b)(4) - Combination Residence & off-campus training Citation:Vet.Aff.Op.Gen.Couns.Prec. 42-90,VAOPGCPREC 42-90, 1990
    PREC 43-90 Work-study Supervision - Proper Utilization & Supervision of Veteran-Students Citation:Vet.Aff.Op.Gen.Couns.Prec. 43-90,VAOPGCPREC 43-90, 1990
    PREC 44-90 Application of NC Sales tax to sales of Books & Supplies to VA Vocational Rehabilitation Students Citation:Vet.Aff.Op.Gen.Couns.Prec. 44-90,VAOPGCPREC 44-90, 1990
    PREC 45-90 Application of Dual Compensation to Veteran-Student Services Program Citation:Vet.Aff.Op.Gen.Couns.Prec. 45-90,VAOPGCPREC 45-90, 1990
    PREC 46-90 Application of 38 USC § 1775 [now § 3675] & VAR 14200 & 14280 [now 38 CFR § 21.4200 & 21.4280] Citation:Vet.Aff.Op.Gen.Couns.Prec. .46-90,VAOPGCPREC 46-90, 1990
    PREC 47-90 Utilization of a Work-study Veteran Student to Provide Transportation to Service-Disabled [Chapter 31] Service-disabled veteran Citation:Vet.Aff.Op.Gen.Couns.Prec. 47-90,VAOPGCPREC 47-90, 1990
    PREC 48-90 Prison Training Citation:Vet.Aff.Op.Gen.Couns.Prec. 48-90,VAOPGCPREC 48-90, 1990
    PREC 49-90 Discontinuance of Educational Benefits Payments Citation:Vet.Aff.Op.Gen.Couns.Prec. 49-90,VAOPGCPREC 49-90, 1990
    PREC 50-90 Eligibility for Educational Benefits under Chapter 32 - 12 month Participation Restriction Citation:Vet.Aff.Op.Gen.Couns.Prec. 50-90,VAOPGCPREC 50-90, 1990
    PREC 51-90 School Liability - School vs. Veteran Liability Citation:Vet.Aff.Op.Gen.Couns.Prec. 51-90,VAOPGCPREC 51-90, 1990
    PREC 52-90 Application of 38 USC § 1781 [now § 3681] to the related Instruction Portion of Apprenticeship or OJT Program Citation:Vet.Aff.Op.Gen.Couns.Prec. 52-90,VAOPGCPREC 52-90, 1990
    PREC 53-90 School Liability - Reporting Requirements Citation:Vet.Aff.Op.Gen.Couns.Prec. 53-90,VAOPGCPREC 53-90, 1990
    PREC 54-90 38 USC § 1673 [now § 3473](a)(2) - Enrollment Limitation Citation:Vet.Aff.Op.Gen.Couns.Prec. 54-90,VAOPGCPREC 54-90, 1990
    PREC 55-90 Interpretation of 38 USC § 1784 [now § 3684] and § 1785 [now § 3685] & Va Regulations 14009 & 14209 Citation:Vet.Aff.Op.Gen.Couns.Prec. 55-90,VAOPGCPREC 55-90, 1990
    PREC 56-90 Combination Residence - Correspondence Courses Citation:Vet.Aff.Op.Gen.Couns.Prec. 56-90,VAOPGCPREC 56-90, 1990
    PREC 57-90 Definition of "Proprietary Educational Institution" in 38 USC 1673(d) excludes Military Aero Flight Clubs operated as Federal Instrumentalities Citation:Vet.Aff.Op.Gen.Couns.Prec. 57-90,VAOPGCPREC 57-90, 1990
    PREC 58-90 War Orphan Benefits for the Children of New Philippine Army Scouts who have elected to receive Lump-Sum BEC Benefits Citation:Vet.Aff.Op.Gen.Couns.Prec. 58-90,VAOPGCPREC 58-90, 1990
    PREC 59-90 Power of Attorney to Flight School to Cash Government Checks for Educational Assistance Allowance Citation:Vet.Aff.Op.Gen.Couns.Prec. 59-90,VAOPGCPREC 59-90, 1990
    PREC 60-90 Entitlement to Special Monthly Compensation pursuant to 38 USC 314, Specially Adapted Housing pursuant to 38 USC 801, and Adaptive Equipment pursuant to 38 USC 1901 Citation:Vet.Aff.Op.Gen.Couns.Prec. 60-90,VAOPGCPREC 60-90, 1990
    PREC 61-90 Reconsideration of OGC PREC 15-56 that Minor Stepchild Serving in Military not Member of Veteran's Household Citation:Vet.Aff.Op.Gen.Couns.Prec. 61-90,VAOPGCPREC 61-90, 1990
    PREC 62-90 Waiver of National Service Life Insurance Premiums under 38 USC 712 Citation:Vet.Aff.Op.Gen.Couns.Prec. 62-90,VAOPGCPREC 62-90, 1990
    PREC 63-90 Benefits for Blind Veterans under 38 USC § 614 [now § 1714] - Equality for Economically Handicapped Citation: Vet.Aff.Op.Gen.Couns.Prec. 63-90,VAOPGCPREC 63-90, 1990
    PREC 64-90 Payment Provision Pub.L. 87-574 § 2 - 38 USC § 618 [now § 1718] Citation:Vet.Aff.Op.Gen.Couns.Prec. 64-90,VAOPGCPREC 64-90, 1990
    PREC 65-90 Concurrent Payment of Employees' Compensation to Widow & Dependency & Indemnity Compensation (DIC) to Child when he attains Age 18 - BEC & DIC - Child in School Citation:Vet.Aff.Op.Gen.Couns.Prec. 65-90,VAOPGCPREC 65-90, 1990
    PREC 66-90 Protection of Ratings for Defective Hearing under superseded criteria [overruled by Fugere v. Derwinski, 1 Vet. App. 103 (1990) Citation:Vet.Aff.Op.Gen.Couns.Prec. 66-90,VAOPGCPREC 66-90, 1990
    PREC 67-90 Congenital/Developmental Conditions under 38 CFR 3.303(C) Citation:Vet.Aff.Op.Gen.Couns.Prec. 67-90,VAOPGCPREC 67-90, 1990
    PREC 68-90 Applicability of 38 USC § 410 [now § 1310](b) where Total Disability may have Preceded Effective Date of total Disability Rating Citation:Vet.Aff.Op.Gen.Couns.Prec. 68-90,VAOPGCPREC 68-90, 1990
    PREC 69-90 Application of Change in Law during Pendency of Appeal - BVA Authority to decide Radiation Case using Criteria superseded by 38 CFR § 3.311(b) Citation:Vet.Aff.Op.Gen.Couns.Prec. 69-90,VAOPGCPREC 69-90, 1990
    PREC 70-90 Countablity for Improved Pension Purposes of Interest Accrued on Retirement Annuity Accounts (IRAs) Citation:Vet.Aff.Op.Gen.Couns.Prec. 70-90,VAOPGCPREC 70-90, 1990
    PREC 71-90 Treatment of Tribal per capita Payments for Increased Pension Purposes Citation:Vet.Aff.Op.Gen.Couns.Prec. 71-90,VAOPGCPREC 71-90, 1990
    PREC 72-90 Trust Property, Countable Income & Net Worth Citation:Vet.Aff.Op.Gen.Couns.Prec. 72-90,VAOPGCPREC 72-90, 1990
    PREC 73-90 Scope of 38 USC § 360 [now 1160] in relation to 38 USC § 351 [now §1151] Citation:Vet.Aff.Op.Gen.Couns.Prec. 73-90,VAOPGCPREC 73-90, 1990
    PREC 74-90 Discontinuance of apportionment due to Divorce Citation:Vet.Aff.Op.Gen.Couns.Prec. 74-90,VAOPGCPREC 74-90, 1990
    PREC 75-90 Entitlement to Service-Connected Benefits Where Disability or Death is Compensable under 38 USC § 360 [now § 1160] vs. under 38 USC § 410 [now § 1310](b) & § 412 "As if" Service-Connected Citation:Vet.Aff.Op.Gen.Couns.Prec. 75-90,VAOPGCPREC 75-90, 1990
    PREC 76-90 Income from Lands held in Trust by Federal Government for Indian Tribes - Countability for VA Pension Purposes Citation:Vet.Aff.Op.Gen.Couns.Prec. 76-90,VAOPGCPREC 76-90, 1990
    PREC 77-90 Period of Eligibility for Insurance -Secondary Service-connection - New Eligibility for SDVI Citation: Vet.Aff.Op.Gen.Couns.Prec. 77-90,VAOPGCPREC 77-90, 1990
    PREC 78-90 Effect of Veteran's Election to receive Military Retirement Pay on Surviving Spouse's Entitlement to DIC under 38 USC 410(b) Citation:Vet.Aff.Op.Gen.Couns.Prec. 78-90,VAOPGCPREC 78-90, 1990
    PREC 79-90 Offset of Survivors Benefits [DIC] under 38 USC § 351 [now § 1151] Citation:Vet.Aff.Op.Gen.Couns.Prec. 79-90,VAOPGCPREC 79-90, 1990
    PREC 80-90 Interpretation of 38 USC § 351 [now § 1151] in relation to 38 USC § 410(b) [now § 1310] eligibility Citation:Vet.Aff.Op.Gen.Couns.Prec. 80-90,VAOPGCPREC 80-90, 1990
    PREC 81-90 Mineral Lease Income Citation:Vet.Aff.Op.Gen.Couns.Prec. 81-90,VAOPGCPREC 81-90, 1990
    PREC 82-90 Congenital/Developmental conditions under 38 CFR 3.303(c )Citation:Vet.Aff.Op.Gen.Couns.Prec. 82-90,VAOPGCPREC 82-90, 1990
    PREC 83-90 Course Substitution by Institution - 38 USC § 1782 [now § 3682] Citation:Vet.Aff.Op.Gen.Couns.Prec. 83-90,VAOPGCPREC 83-90, 1990
    PREC 84-90 Statute of Limitations on Education Loans Citation:Vet.Aff.Op.Gen.Couns.Prec. 84-90,VAOPGCPREC 84-90, 1990
    PREC 85-90 Waived Income for Pension Purposes - Withdrawal of Social Security Application Citation:Vet.Aff.Op.Gen.Couns.Prec. 85-90,VAOPGCPREC 85-90, 1990
    PREC 86-90 Entitlement to Serivce-Connected Disability Benefits for Heart Attack Sustained during Inactive Duty Training Citation:Vet.Aff.Op.Gen.Couns.Prec. 86-90,VAOPGCPREC 86-90, 1990
    PREC 87-90 Veterans' Job Training Act (VJTA - Pub .L. 98-77) & Veterans' Home Loan Program & Improvement Act of 1987 (Pub.L. 100-198) Citation:Vet.Aff.Op.Gen.Couns.Prec. 87-90,VAOPGCPREC 87-90, 1990.
    PREC 88-90 Effective Date of Compensation under 38 U.S.C § 314 [now § 1114(k)] Citation:Vet.Aff.Op.Gen.Couns.Prec. 88-90,VAOPGCPREC 88-90, 1990
    PREC 89-90 Reconsiderations by the Board of Veterans Appeals Pursuant to 38 U.S.C.§ 4003 Citation:Vet.Aff.Op.Gen.Couns.Prec. 89-90,VAOPGCPREC 89-90, 1990
    PREC 90-90 Inference of Marriage of a Veteran's Child- Can additional compensation be denied under 38 CFR § 3.500 Citation:Vet.Aff.Op.Gen.Couns.Prec. 90-90,VAOPGCPREC 90-90, 1990
    PREC 91-90 Interest Rate Limitation under Soldiers' & Sailors' Civil Relief Act Citation:Vet.Aff.Op.Gen.Couns.Prec. 91-90,VAOPGCPREC 91-90, 1990
    PREC 92-90 Application of Manufactured Home Downpayment Requirement to Continuation of Liability Cases Citation: Vet.Aff.Op.Gen.Couns.Prec92-90,VAOPGCPREC 92-90, 1990
    PREC 93-90 Entitlement to Special Monthly Compensation for Anatomical Loss of A Creative Organ Citation:Vet.Aff.Op.Gen.Couns.Prec. 93-90,VAOPGCPREC 93-90, 1990
    PREC 94-90 Total Rating Requirement for Specially Adapted Housing under 38 USC § 801 [now § 2101](a) Citation:Vet.Aff.Op.Gen.Couns.Prec. 94-90,VAOPGCPREC 94-90, 1990
    PREC 95-90 Eligibility of Refinancing Loan for Guaranty Citation:Vet.Aff.Op.Gen.Couns.Prec. 95-90,VAOPGCPREC 95-90, 1990
    PREC 96-90 Vendee Loan Sales Citation:Vet.Aff.Op.Gen.Couns.Prec. 96-90,VAOPGCPREC 96-90, 1990
    PREC 97-90 Review of Refunding Decision -not question of fact or law per 38 USC § 211 [now § 5111](a)(1) Citation:Vet.Aff.Op.Gen.Couns.Prec. 97-90,VAOPGCPREC 97-90, 1990
    PREC 98-90 Eligibility for Waiver of IndebtednessCitation: Vet.Aff.Op.Gen.Couns.Prec. 98-90,VAOPGCPREC 98-90, 1990
    PREC 99-90 Benefits under 38 CFR § 3.358( c) for HIV infection acquired through Blood Transfusion Citation:Vet.Aff.Op.Gen.Couns.Prec. 99-90,VAOPGCPREC 99-90, 1990
    PREC 100-90 Impact of P.L. 101-237 on 38 USC § 362 - Clothing AllowanceCitation:Vet.Aff.Op.Gen.Couns.Prec. 100-90,VAOPGCPREC 100-90, 1990
    VAOPGCPREC 1-89 Eligibility for Educational Benefits under 10 U.S.C. § 106 Citation: Vet. Aff. Op. Gen Couns. Prec. 1-89, VAOPGCPREC 1-89, 1989
    VAOPGCPREC 2-89 Commencement of Payment in Reopened Claims for Improved Pension Citation: Vet. Aff. Op. Gen Couns. Prec. 2-89, VAOPGCPREC 2-89, 1989
    VAOPGCPREC 3-89 Constitutionality of § 7(b)(3) of the Emergency Veterans' Job Training Act of 1983 Citation: Vet. Aff. Op. Gen Couns. Prec. 3-89, VAOPGCPREC 3-89, 1989
    VAOPGCPREC 4-89 Gifts & Inheritances of Property as Improved Pension Income; Citation: Vet. Aff. Op. Gen Couns. Prec. 4-89, VAOPGCPREC 4-89, 1989
    VAOPGCPREC 5-89 Entitlement to Special Monthly Compensation for Anatomical Loss of a Creative Organ following Elective Sterilization Citation: Vet. Aff. Op. Gen Couns. Prec. 5-89, VAOPGCPREC 5-89, 1989
    VAOPGCPREC 6-89 Improved Pension Income -- Deduction of Expenses for Last Illness, Burial & Just Debts; Citation: Vet. Aff. Op. Gen Couns. Prec. 6-89, VAOPGCPREC 6-89, 1989
    VAOPGCPREC 7-89 Revision of Neuropsychiatric Disorder Rating Codes Citation: Vet. Aff. Op. Gen Couns. Prec. 7-89, VAOPGCPREC 7-89, 1989
    VAOPGCPREC 8-89 VA Loan Guaranty Program Compliance with National Environmental Policy Act of 1969; Citation: Vet. Aff. Op. Gen Couns. Prec. 8-89, VAOPGCPREC 8-89, 1989
    VAOPGCPREC 9-89 Time Period for Filing Claim for Burial Benefits for Death from Service-Connected Disability Citation: Vet. Aff. Op. Gen Couns. Prec. 9-89, VAOPGCPREC 9-89, 1989
    VAOPGCPREC 10-89 Treatment of Provisional Income -- Improved Pension Program Citation: Vet. Aff. Op. Gen Couns. Prec. 10-89, VAOPGCPREC 10-89, 1989
    VAOPGCPREC 11-89 Eligibility for Burial in a National Cemetery   Citation: Vet. Aff. Op. Gen Couns. Prec. 11-89, VAOPGCPREC 11-89, 1989
    VAOPGCPREC 12-89 Treatment of Alaskan Native & Tribal Income for Improved Pension Purposes Citation: Vet. Aff. Op. Gen Couns. Prec. 12-89, VAOPGCPREC 12-89, 1989
    VAOPGCPREC 13-89 Criteria for Independent Dose Reconstruction Citation: Vet. Aff. Op. Gen Couns. Prec. 13-89, VAOPGCPREC 13-89, 1989
    VAOPGCPREC 14-89 Applicability of Rationan-Risk Presumption to Personnel on Active Duty for Training; Citation: Vet. Aff. Op. Gen Couns. Prec. 14-89, VAOPGCPREC 14-89, 1989
    VAOPGCPREC 15-89  Effective Date for Improved-Pension Purposes based on Change in Income Citation: Vet. Aff. Op. Gen Couns. Prec. 15-89, VAOPGCPREC 15-89, 1989
    VAOPGCPREC 16-89  Application of 38 C.F.R. § 3.951 & Entitlement to Special Monthly Compensation; Citation: Vet. Aff. Op. Gen Couns. Prec. 16-89, VAOPGCPREC 16-89, 1989
    VAOPGCPREC 17-89 Treatment of Gambling Losses under the Improved-Pension ProgramCitation: Vet. Aff. Op. Gen Couns. Prec. 17-89, VAOPGCPREC 17-89, 1989 
    VAOPGCPREC 18-89 Entitlement to Burial Benefits following change in Law - Pub. L. No. 95-202; Pub. L. No. 100-321 Citation: Vet. Aff. Op. Gen Couns. Prec. 18-89, VAOPGCPREC 18-89, 1989
    VAOPGCPREC 19-89 Applicability of Statutory Limintation on Attorneys' Fees at 38 U.S.C. §§ 3404 and 3405 to Administrative Debt-Collection Matters   Citation: Vet. Aff. Op. Gen Couns. Prec. 19-89, VAOPGCPREC 19-89, 1989
    VAOPGCPREC 20-89 Proper Interpretation of 38 U.S.C. § 1781(a); Citation: Vet. Aff. Op. Gen Couns. Prec. 20-89, VAOPGCPREC 20-89, 1989
    VAOPGCPREC 6-1987 (7/27/1987) Character of Discharge: Juvenile Offenses as Moral Turpitude

    Tbird
    If you disagree with a VA decision, you or your representative can request a new review of your case by a higher-level reviewer. The reviewer will determine whether an error or a difference of opinion changes the decision. You can’t submit new evidence with a Higher-Level Review.
    Source: VA.gov
     
    Can I request a Higher-Level Review?
    You can request a Higher-Level Review of an initial claim or Supplemental Claim decision. You have 1 year from the date of your decision letter to request a Higher-Level Review.
    Note: You can’t request a Higher-Level Review after a previous Higher-Level Review or Board Appeal on the same claim. And you can’t request a Higher-Level Review if you have a contested claim.
    A contested claim is when you and someone else claim a benefit that only one person can claim. You have 60 days to appeal to a Veterans Law Judge at the Board of Veterans’ Appeals in Washington, D.C. A judge who’s an expert in Veterans law will review your case. Learn more about contested claims.
     
    How long does a Higher-Level Review take?
    Our goal for completing claims unrelated to health care benefits is an average of 125 days (4 to 5 months).
    Note: If you ask for an informal conference as part of your Higher-Level Review, it may take us longer to complete. Instead, you may want to consider submitting a written statement with your application to tell us about the errors you’ve identified. This will help us make a decision faster.
    What’s an informal conference?
    An informal conference is a call with the higher-level reviewer for your case. If you choose to have an informal conference, the reviewer will call to schedule a time to discuss your case with you. They’ll call the phone number that you provided on the Higher-Level Review form.
    During the call, you or your representative can identify errors and discuss why you think the decision should change. You can’t submit new evidence.
    If no one answers when the higher-level reviewer calls, they’ll leave a voicemail. If they can’t leave a message or make contact after 2 attempts, they’ll review and decide your case without an informal conference.
    How do I ask for an informal conference?
    If you want a call with a higher-level reviewer, you must choose the informal conference option when you request a Higher-Level Review.
    You’ll need to choose either a morning or afternoon time frame for your call. You’ll also need to choose whether you want us to call you or your representative. If you’d like us to call your representative, fill in their name and phone number.
    If you request a Higher-Level Review online, you can ask for an informal conference in step 3 of the online form.
    If you request a Higher-Level Review by mail or in person, you can ask for an informal conference by marking the circle in item 16A on VA Form 20-0996.
    Note: You can have only one informal conference for each Higher-Level Review. Ensure you have ready the information that you want to discuss with the reviewer. Prepare to explain any errors in your case.
    How do I request a Higher-Level Review?
    Submit your request online for a disability compensation claim
    Currently, a disability compensation claim is the only type of claim for which you can use our online Higher-Level Review form.
    Request a Higher-Level Review
    Note: For other types of claims, you’ll need to request a Higher-Level Review either by mail or in person.
    Submit your request by mail for any type of benefit claim
    Fill out the Decision Review Request: Higher-Level Review (VA Form 20-0996).
    Get VA Form 20-0996 to download.
    Send the completed form to the benefit office that matches the benefit type you selected on the form.
    Disability compensation Department of Veterans Affairs
    Claims Intake Center
    PO Box 4444
    Janesville, WI 53547-4444
    Life insurance Department of Veterans Affairs
    Attention: Insurance Center
    PO Box 5209
    Janesville, WI 53547
    Pension and survivor benefits Department of Veterans Affairs
    Claims Intake Center
    PO Box 5365
    Janesville, WI 53547-5365
    Program of Comprehensive Assistance for Family Caregivers (PCAFC) Department of Veterans Affairs
    Evidence Intake Center
    PO Box 5154
    Janesville, WI 53547
    Health care benefits and all other benefit types: Check the decision letter for your initial claim or application for instructions on submitting the form. Submit your request in person (only for claims that aren’t related to health care benefits)
    Fill out the Decision Review Request: Higher-Level Review (VA Form 20-0996).
    Get VA Form 20-0996 to download.
    Bring your completed form to a VA regional office near you for claims unrelated to health care benefits.
    Find your nearest VA regional office.
    You can also ask a regional benefit office for a copy of this form. Or call us at 800-827-1000 (TTY: 711) to request a form. We’re here Monday through Friday, 8:00 a.m. to 9:00 p.m. ET.
    Helpful information for filling out your form
    Keep reading for help completing certain sections of the Decision Review Request: Higher-Level Review (VA Form 20-0996).
    Section III: Select a benefit type
    The most common benefit type is compensation. If you’re unsure, check your VA decision. You can’t select multiple benefit types. You have to complete a separate form for each type.
    Section VI: List the issues you want us to review
    You must list the issues you disagree with and the VA decision date for each. You can include all or just some of the issues we’ve decided on, but they must all be within the same benefit type.
    Note: You can’t submit any evidence.
    What if I have new and relevant evidence?
    If you have evidence to submit, please select another decision review option.
    Learn more about the decision review options
    What happens next?
    Find out what happens after you request a decision review
    You don’t need to do anything while you wait unless the VA sends you a letter asking for more information. If VA schedules exams for you, be sure not to miss them.
    If you’ve filed a request for a Higher-Level Review, we may randomly select you to receive an email with a short, optional survey. If selected, you’ll get a survey about a week after we receive your initial claim. You’ll get a second survey about a week after you receive your decision notification letter. You aren’t required to complete either survey, but your feedback will help us improve the decision-review process. It takes about 3 minutes to answer the questions. Please review your VA.gov profile to ensure we have your most recent email address.
    Find out how to update your email address
    What if the reviewer finds an error?
    This depends on what type of error they find. In some cases, the error changes the original decision. We’ll send you a new decision to let you know about this change.
    If the reviewer finds that we didn’t help you get all the evidence you needed for your claim, this is called a “duty-to-assist error.” We’ll close the review and open a new claim to gather the missing evidence to fix this error. We’ll also send you a letter to tell you the steps we’ll take to fix the error. Then we’ll help you get the missing evidence, and decide your case based on this new evidence.
    What if I need help?
    A Veterans Service Organization or VA-accredited attorney or agent can help you request a decision review.
    Get help requesting a decision review
    What if I have more questions?
    Get answers to frequently asked questions about decision reviews.
    Go to FAQs about decision reviews
    What if I get a Higher-Level Review decision that I disagree with?
    You can then file for a Board Appeal, which means your case gets reviewed by a Veterans Law Judge. You also have the option to file a Supplemental Claim if you have additional evidence you want to submit for review.

    Tbird
    If you disagree with the VA's initial decision on your claim and decide to appeal the decision to the Board of Veterans' Appeals (Board), you have a few different options to choose how your appeal proceeds. But many people don't know what to expect, which could cloud their ability to choose the best option for them.
    In the video below, Judge Tanya Smith, a Veterans Law Judge, explains to Veterans what to expect, what to prepare, and what happens after a hearing.
    As the video above explains, one option is to have a hearing with a Veterans Law Judge (VLJ). Hearings are optional and aren't necessary to receive a decision from the Board.
    (Some veterans make a potentially quicker decision, and, to save time, they can choose one of the other options the Board offers. Instead of a hearing, the VLJ will review any evidence/statements you have submitted before deciding your appeal.)
    If you decide you want a hearing, consider choosing a virtual tele-hearing. Virtual tele-hearings are safe and secure, allowing you to have your hearing from the comfort of your home instead of traveling to a VA facility. Virtual tele-hearings are a great option, especially during a pandemic. They do not negatively affect your appeal, so don't postpone your hearing and delay your decision – choose a virtual tele-hearing.
    What can you expect during a Board Hearing?
    At the start of the hearing, the judge will ask you to raise your right hand, if possible, and swear you in. The judge will ask you to take an oath or affirm that you'll tell the truth during the hearing. During the hearing, you, your representative – if you have one, and the judge will discuss the issues on appeal. These hearings allow you to tell your story, and you should be comfortable doing so. The judge will listen to your testimony and may ask you a few questions to understand your appeal better. What should you do during the hearing?
    Tell the judge why you think you qualify for the VA benefits in your appeal. Answer any questions the judge has about your appeal. Share any new evidence with the judge: You can add new and relevant evidence either at the hearing or within 90 days after the hearing. Adding evidence is optional. What happens after your hearing?
    Please understand that the judge will not decide on your appeal the moment the hearing ends. When the 90 days for submitting new evidence after your hearing has ended, your appeal will be placed on the docket for a decision by a judge. You will receive your decision in the mail, and your representative will also receive a copy. You can track the status of your appeal by signing in at www.VA.gov. The video above has additional information.
    Cheryl L. Mason is the chairman of the Board of Veterans' Appeals.
    Source VA.gov Jan 25, 2021


    Tbird
    Godsey v. Wilkie
    On June 13, 2019, the U.S. Court of Appeals for Veterans Claims (CAVC) certified its first class action. The case, styled Godsey v. Wilkie, was a petition for extraordinary relief brought by Covington & Burling LLP and the National Veterans Legal Services Program (NVLSP). The petition was filed on behalf of veterans James A. Godsey, Jr., Jeffery S. Henke, Thomas J. Marshall, Pamela Whitfield. It sought relief for all similarly situated VA benefits claimants who have filed an appeal to VA’s highest tribunal, the Board of Veterans’ Appeals (Board), and since have suffered extended delays waiting for VA to begin moving their appeals forward in a process called “certification.”
    The CAVC partially granted the petition in the same order that it certified the class action, concluding that 18-month or longer VA delays to begin that process are “per se unreasonable.” “Such delays are particularly intolerable,” the Court stated, “because they consist of nothing but waiting in line: ... no action whatsoever on the part of VA” while the veterans have continued to wait.
    The National Veterans Legal Services Program (NVLSP) represents some of the veterans whose VA appeals have been delayed for a long time in the recently certified Godsey Class Action. In order to help us determine if you are covered by this Class Action, please complete this form.
    Source NVLSP
    UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
    NO. 17-4361
     
    James A. Godsey, Jr., Et al., Petitioners,
     
    V.
     
    Robert L. Wilkie,
    Secretary of Veterans Affairs, Respondent.
     
    Before PIETSCH, BARTLEY, and ALLEN, Judges.

    O R D E R1
     
    Before February 19, 2019, a claimant dissatisfied with a VA benefits decision could appeal that decision to the Board of Veterans' Appeals (Board) by filing a Notice of Disagreement (NOD) and, ultimately, a Substantive Appeal.2 38 U.S.C. § 7105(a) (2018); see Murphy v. Shinseki, 26 Vet.App. 510, 514 (2014). Once a claimant filed a Substantive Appeal, VA would certify the case and transfer the appellate record to the Board. See 38 C.F.R. § 19.35 (2018). In 2017, when the instant petition was filed, it took VA, on average, 773 days to certify a case to the Board after receiving a Substantive Appeal and an additional 321 days after that to transfer the appellate record. BOARD CHAIRMAN'S FISCAL YEAR 2017 ANNUAL REPORT (2017 BOARD ANNUAL REPORT)
    at 25, available at https://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2018AR.pdf.
    The petitioners argue that taking nearly three years to complete these tasks is unreasonable and deprives them of their constitutional right to due process. They request, on behalf of themselves and a class of similarly situated claimants, that the Court compel the Secretary to expedite the appeals certification and transfer process. Petition (Pet.) at 1-2. The Court agrees that judicial intervention is necessary and, for the reasons that follow, will modify and certify the class proposed by the petitioners and grant the petition for extraordinary relief in the nature of a writ of mandamus.
     
     
     
     
    1 The Court held oral argument in this case at Liberty University School of Law in Lynchburg, Virginia, on February 21, 2019. The Court extends its appreciation to the law school for its hospitality.
    2 The Veterans Appeals Improvement and Modernization Act of 2017 (VAIMA) overhauled the process for appealing VA benefits decisions, including by creating different types of agency review and allowing claimants to select among those options. See Pub. L. No. 115-55, 131 Stat. 1105, § 2 (Aug. 23, 2017). Although VAIMA was enacted on August 23, 2017, the Secretary's regulations implementing VAIMA did not become effective until February 19, 2019. See VA Claims and Appeals Modernization, 84 Fed. Reg. 138 (final rule) (Jan. 18, 2019); VA Claims and Appeals Modernization, 84 Fed. Reg. 2,449 (notification of effective date) (Feb. 7, 2019). One of those regulations, 38 C.F.R. § 3.2400, specifies that VAIMA does not apply to claims decided before February 19, 2019, unless the claimant elects to have the decision reviewed under the modernized system. 38 C.F.R. § 3.2400(b) (2018). Claims decided before that effective date are called "legacy claims" and appeals under the pre-VAIMA system are called "legacy appeals." Id.
    PRELIMINARY MATTER As an initial matter, the Court wants to be clear that, by deciding class certification and the merits of the underlying petition in a single order, it is not adopting a general policy or framework for deciding such matters concurrently in future cases. However, given the unique circumstances surrounding this case, particularly the nature of the alleged injury and the need for rapid remedial action, the Court has concluded that resolving both matters in a single order is appropriate here. See Quinault Allottee Ass'n & Individual Allottees v. United States, 453 F.2d 1272, 1276 (Fed. Cl. 1972) (deciding requests for class certification on a case-by-case basis, "gaining and evaluating experience" on an ad hoc basis before adopting general class certification rules).
     
    BACKGROUND The Petition  
    On November 15, 2017, veterans James A. Godsey, Jr., Jeffery S. Henke, Thomas J. Marshall, and Pamela Whitfield filed through counsel a petition for extraordinary relief in the nature of a writ of mandamus. The petitioners stated that they had each filed a Substantive Appeal at least three years earlier and that, as of the date of the petition, VA had not yet certified any of their cases to the Board. Pet. at 5-6. The petitioners alleged that the Secretary's failure to timely certify their cases to the Board violated their right to procedural due process under the Fifth Amendment to the U.S. Constitution, constituted agency action unlawfully withheld or unreasonably delayed within the meaning of 38 U.S.C. § 7261(a)(2) and 5 U.S.C. § 555(b), and violated their statutory right under 38 U.S.C. § 7107(a)(1) to have their appeals "considered and decided [by the Board] in regular order according to its place upon the docket." Pet. at 1-2, 7-13. The petitioners also asserted that such "extreme" certification delays are typical of the legacy appeals system and are likely encountered by hundreds, if not thousands, of claimants across the country. Id. at 6.
     
    Accordingly, the petitioners requested, on behalf of themselves and a class of similarly situated individuals, that the Court issue a writ of mandamus compelling the Secretary, within 60 days, to certify and transfer to the Board all cases that have been waiting two years or more for certification following the timely filing of a Substantive Appeal. Id. at 1-2.
     
    Certification and Transfer of the Appellate Record  
    Before turning to the merits of the petitioners' arguments, it is necessary to outline the specific VA processes at the heart of this dispute: certification of a case and the transfer of the appellate record to the Board.
     
    Pre-Certification Review Per the VA Adjudication Procedures Manual (M21-1), after a claimant files a Substantive Appeal, his or her case is to be sent to a higher level employee at the VA regional office (RO), such as a decision review officer (DRO), who is to review the case to determine whether it is ready to be certified and sent to the Board. M21-1, pt. 1, ch. 5, § F.3.f. This determination is called
    "initial review of evidence," id., §§ F.3.b-d, but for purposes of this order the Court refers to it as pre-certification review. Pre-certification review is to entail verifying that all entries in the electronic Veterans Appeals Control and Locator System (VACOLS) are correct and up-to-date, identifying whether relevant evidence has been obtained and that the duty to assist has otherwise been met, checking whether all relevant claims processing documents have been issued and included in the file, and ensuring that the necessary appeal documents are in the electronic Veterans Benefits Management System (VBMS). Id., §§ F.3.g-h. If, as a result of pre-certification review, the RO assesses that no further development or adjudication is necessary, the case is certified as explained below. Id., §§ F.3.c, h.
     
    Additional Development and Adjudication After Pre-Certification Review
    If as a result of pre-certification review the RO assesses that further development and adjudication is necessary, that is, if it identifies outstanding evidence that has not yet been obtained, evidence received from the claimant that has not yet been reviewed along with a written request that the RO review that evidence in the first instance, an issue or argument that has not yet been developed or adjudicated, or a claimant request for further development, the RO is to take additional steps after pre-certification review to conduct the necessary development or adjudication activities and, only after such steps have been taken, certify the case to the Board. Id., §§ F.3.c-d; see also 38 C.F.R. § 19.37 (2018).
     
    Actual Certification
    Once pre-certification review is complete and once any necessary development or adjudication has taken place after completion of pre-certification review, the RO is to generate a VA Form 8, Certification of Appeal, the completion of which signifies that the case is ready to be transferred to the Board. Id.; see 38 C.F.R. § 19.35 (2018) (indicating that "[c]ertification is accomplished by the completion of VA Form 8," which "is used for administrative purposes and does not serve to either confer or deprive the Board[]of jurisdiction over an issue"); see generally M21-1, pt. 1, ch. 5, § F.9.a (VA's appeal certification worksheet).
     
    VA's Table of Work-Rate Standards for Adjudication Activities indicates that certification of a case to the Board, apparently including pre-certification review but excluding additional development and readjudication, should take 1.59 hours for non-rating cases, 2.6 hours for rating cases, and 4.19 hours for cases that involve both types of issues. VA MANPOWER CONTROL AND UTILIZATION IN ADJUDICATION DIVISIONS MANUALS (M21-4), Appx. B, § III. Nevertheless, in
    2017, a claimant waited, on average, 773 days from the filing of a Substantive Appeal for the RO to complete the certification process. See 2017 BOARD ANNUAL REPORT at 25.
     
    Transfer of File to the Board "Once the RO completes all steps of the certification process, the appellate record must be immediately transferred to [the Board]." M21-1, pt. 1, ch. 5, § F.4.a. However, before transferring the record, the RO is supposed to conduct one more review of VACOLS to ensure that all information has been updated and, if necessary, prepares the paper claims folder to be sent to the scanning vendor. Id., §§ F.4.c-e. After that, the RO will transfer the case to the Board. Id., § F.4.e;
    see generally id., § F.10 (VA's checklist for transferring certified cases to the Board). In 2017, claimants waited, on average, 321 additional days for the RO to transfer the appellate record to the Board. See 2017 BOARD ANNUAL REPORT at 25.
     
    Receipt & Docketing at the Board
    Upon receipt at the Board, the case is "screened" and formally docketed, at which point a docket number is assigned based on the date of filing of the Substantive Appeal. THE PURPLE BOOK 72 (version 1.0.2, Sept. 2018).
     
    Summary
    In sum, the post-Substantive Appeal process can be broken down into the following stages:
    (1) pre-certification review; (2) if necessary, any additional development and/or readjudication identified during pre-certification review; (3) certification; (4) transfer to the Board; and
    (5) receipt and docketing at the Board. The petitioners do not differentiate between these stages; instead, they argue that the entire certification and transfer process—from the filing of a Substantive Appeal to docketing at the Board—takes too long. But these different stages matter when assessing whether aggregate relief is appropriate in this case. We address that issue in part IV, below. However, before doing so, we must satisfy ourselves that the petition has not become moot by virtue of the Secretary's actions since the filing of the petition.
     
    MOOTNESS The Petitioners' Underlying Claims  
    In May 2018, six months after the petition was filed, the Secretary notified the Court that each of the petitioners had either had their case certified to the Board or their requested benefits granted in full by the RO. See Secretary's Solze Notice. The pleadings filed by both parties reveal the following relevant facts:
     
    Mr. Godsey attempted, in January 2014, to perfect an appeal of various claims denied by the Indianapolis RO by filing a statement in support of claim (SCC) in lieu of a Substantive Appeal. Pet. at Exhibits (Exs.) D-2, D-3. However, the RO failed to recognize the SCC as a Substantive Appeal and closed the case in March 2014. Secretary's Amended Response to the Petition (Resp.) at Ex. A. The RO realized this mistake one year later when reviewing Mr. Godsey's claims file in connection with another claim and reinstated the previously closed appeal. Id. In July 2017, while preparing to certify the case to the Board, a DRO determined that an addendum to a January 2010 VA medical examination was necessary, which it obtained in September 2017. Id. After speaking with Mr. Godsey in November 2017, the RO attempted to obtain updated VA treatment records, which were received in January 2018. Id. The RO, however, issued a Supplemental Statement of the Case (SSOC) in January 2018 before it had received those records; as a result, in March 2018 the RO contacted Mr. Godsey to see if he would waive RO consideration of those records in order to move the appeal to the Board. Id. Mr. Godsey submitted a waiver later that month and the appeal was ultimately certified to the Board on March 30, 2018. Id.; see also Secretary's Solze Notice at 1.
    Mr. Henke perfected his appeal of a respiratory claim denied by the Indianapolis RO by filing a Substantive Appeal in November 2012. Pet. at Ex. D-7. In January 2013, before the case was certified to the Board, he requested an RO hearing, which was held in December 2016. Secretary's Amended Resp. at Ex. B. A new VA respiratory examination was requested later that month and was provided in March 2017; however, the examination was determined to be inadequate due to lack of an etiology opinion. Id. After numerous attempts to obtain a non- speculative opinion from the examiner and additional treatment records, the RO, on November 30, 2017, issued a rating decision granting his claim for service connection, which the RO characterized as fully resolving the issue on appeal. Id.; see also Secretary's Solze Notice at 1.
     
    Mr. Marshall filed a Substantive Appeal in May 2014 as to claims denied by the Columbia RO. Pet. at Ex. D-11. Later that month, before his case was certified to the Board, his veterans service organization (VSO) representative requested that a VA examination that the veteran missed because he was hospitalized be rescheduled. Secretary's Amended Resp. at Ex. C. The examination was rescheduled for December 2015, but Mr. Marshall missed it and asked for it to be rescheduled again. Id. In February 2016, the RO requested and received additional private treatment records. Id. The RO submitted another examination request in May 2016. Id. It is unclear if that examination was ever conducted because, on November 28, 2017, the RO issued a DRO decision granting the appealed claims, which it characterized as a complete grant of the benefits sought on appeal. Id.; see also Secretary's Solze Notice at 2.
     
    Ms. Whitfield filed her Substantive Appeal in November 2011, challenging the Roanoke RO's denial of a claim for an increased evaluation in excess of 10% for status post Morton's neuroma removal with residual scar. Pet. at Ex. D-15. Over the next six years, Ms. Whitfield filed various other claims that were processed by the RO. Secretary's Amended Resp. at Ex. D. In November 2017, the RO issued an SSOC, but it is unclear from the evidence before the Court whether the SSOC addressed the Morton's neuroma claim or the other claims. Id. However, on February 13, 2018, the RO certified the Morton's neuroma claim to the Board. Id.; see also Secretary's Solze Notice at 2.
     
    The Petition Is Not Moot  
    In his June 2018 response to the petition, the Secretary argued, inter alia, that the petition was moot, and that the request for class certification should therefore fail, because the petitioners had been granted the relief sought and no longer had a continuing stake in the outcome of the litigation. Secretary's Amended Resp. at 11-12. The petitioners countered that the case was live when they filed their petition and urged the Court to deem the petition justiciable due to the inherently transitory nature of the complained of conduct—namely, the Secretary's failure to timely certify their cases to the Board. Petitioners' Reply at 6-7. The Court agrees with the petitioners that, although they ultimately received the relief they requested before the Court ruled on their petition, the case is not moot and can be decided on the merits.
     
    This Court adheres to the case-or-controversy jurisdictional requirements imposed by Article III of the U.S. Constitution. Cardona v. Shinseki, 26 Vet.App. 472, 474 (2014) (per curiam order); Mokal v. Derwinski, 1 Vet.App. 12, 13 (1990). A case or controversy ceases to exist, and
    a case becomes moot, "'when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome.'" Los Angeles Cty. v. Davis, 440 U.S. 625, 631 (1979) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)). When a case becomes moot during the course of litigation, the proper outcome is to dismiss the case for lack of jurisdiction, unless an exception to mootness applies. See Browder v. Shulkin, 29 Vet.App. 179, 172 (2017) (per curiam); Fabio v. Shinseki, 26 Vet.App. 404, 405 (2013).
     
    The U.S. Supreme Court faced a mootness argument similar to the one presented in this case in County of Riverside v. McLaughlin, 500 U.S. 44 (1991). In McLaughlin, plaintiffs brought a class action suit against the County of Riverside, California, alleging that its policy of waiting until arraignment to determine whether there was probable cause to arrest individuals without a warrant violated the Fourth Amendment requirement that States provide prompt probable cause determinations to warrantless arrestees. 500 U.S. at 47. Before the Supreme Court, the County argued that the case was moot because the named plaintiffs had all received probable cause determinations years earlier and, due to the "time-limited" nature of the complained-of violation, they could not now receive the prompt probable cause hearing that they were allegedly denied. Id. at 50-51. The Supreme Court rejected that argument, highlighting that, at the time the plaintiffs filed their complaint, they had been arrested without warrants and were being held in custody without having received a probable cause determination, they were suffering a direct and current injury as a result of that detention that would continue until they received the probable cause determination to which they were entitled, and their injury was, at that moment, capable of being redressed through injunctive relief. Id. at 51. The Supreme Court stated:
     
    It is true, of course, that the claims of the named plaintiffs have since been rendered moot; eventually, they either received probable cause determinations or were released. Our cases leave no doubt, however, that by obtaining class certification, plaintiffs preserved the merits of the controversy for our review. In factually similar cases we have held that "the termination of a class representative's claim does not moot the claims of the unnamed members of the class." That the class was not certified until after the named plaintiffs' claims had become moot does not deprive us of jurisdiction. We recognized in Gerstein [v. Pugh, 420 U.S. 103 (1975),] that "[s]ome claims are so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative's individual interest expires." In such cases, the "relation back" doctrine is properly invoked to preserve the merits of the case for judicial resolution.
     
    Id. at 51-52 (quoting United States Parole Comm'n v. Geraghty, 445 U.S. 388, 399 (1980))
    (internal citations omitted); see generally Demery v. Wilkie, 30 Vet.App. 430, 443 (2019) (discussing the "relation back" doctrine). As the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) explained in Monk v. Shulkin, "A 'class-action claim is not necessarily moot upon the termination of the named plaintiff's claim' in circumstances in which 'other persons similarly situated will continue to be subject to the challenged conduct,' but 'the challenged conduct was effectively unreviewable, because no plaintiff possessed a personal stake in the suit long enough for litigation to run its course.'" 855 F.3d 1312, 1317 (Fed. Cir. 2017) (quoting Genesis Healthcare Corp. v. Symczyk, 589 U.S. 66, 67 (2013)); see Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1090
    (9th Cir. 2011) ("An inherently transitory claim will certainly repeat as to the class, either because '[t]he individual could nonetheless suffer repeated [harm]' or because 'it is certain that other persons similarly situated' will have the same complaint." (quoting Gerstein, 420 U.S. at 110 n. 11)). That line of reasoning applies with equal force here.
     
    When the petitioners filed their petition in November 2017, they had all been waiting over two years since the filing of their Substantive Appeals for VA to certify their respective cases to the Board. Pet. at 5-6. They would continue to be harmed by that delay until VA either granted benefits or certified their cases to the Board, and the injury they were suffering at that time was redressable by the injunctive relief they requested in their petition. See McLaughlin, 500 U.S. at
    51. Most importantly, the delay the petitioners were experiencing when they filed their petition was inherently transitory because VA could, and did, extinguish their individual interests in the outcome of the class action petition before this Court had the opportunity to rule on their request for class certification. See id. at 52; Geraghty, 445 U.S. at 399.
     
    Although the period at issue in this case is considerably longer than the one in McLaughlin, the inherently transitory exception to mootness may nevertheless be applied here because the petitioners' claims are not only unavoidably time-sensitive, but are also "acutely susceptible to mootness" due to the Secretary's history of mooting petitions before judicial resolution. Pitts, 653 F.3d at 1091 (applying the inherently transitory exception where plaintiffs' claims were likely to be mooted by the defendant's tactic of "picking off" lead plaintiffs with an offer of settlement to avoid a class action because "[t]he end result is the same: a claim transitory by its very nature and one transitory by virtue of the defendant's litigation strategy share the reality that both claims would evade review"); see Monk, 855 F.3d at 1321 (noting the Secretary's practice of mooting cases scheduled for precedential decision). Indeed, the Federal Circuit has indicated that this is precisely the situation where aggregate action is most appropriate to avoid such mootness concerns. See Ebanks v. Shulkin, 877 F.3d 1037, 1040 (Fed. Cir. 2017) (noting that complaints of systemic delay in VA claims processing are "best addressed in the class-action context" to avoid mootness and provide class-wide relief).
     
    Accordingly, the Court concludes that, although the petitioners have now each had their cases resolved or certified to the Board, their petition is not moot because they presented a live case-or-controversy at the time that they filed their petition and the Secretary's conduct that they challenged in the petition was so inherently transitory that it was capable of evading review. Having resolved the mootness dispute, we now move to the class certification issue.
     
    CLASS CERTIFICATION In Monk, the Federal Circuit held that this Court has the "authority to certify a class for class action or similar aggregate resolution procedure." 855 F.3d at 1321. The Federal Circuit declined to prescribe a specific framework for the Court to use to determine whether class certification is appropriate, id. at 1321-22, and, to date, the Court has not devised its own rules for certifying a class. However, in Monk v. Wilkie, 30 Vet.App. 167, 170 (2018), the Court determined that we would use Rule 23 of the Federal Rules of Civil Procedure (Rule 23) as a guide for deciding requests for class certification until we issue our own aggregate action rules. See Thompson v. Wilkie, 30 Vet.App. 345, 346 (2018) (applying Rule 23 to petitioner's request for class
    certification). We therefore proceed to consider the instant request for class certification under that framework.
     
    Under Rule 23(a), the party seeking class certification must demonstrate that
     
    the class is so numerous that joinder of all members is impracticable; there are questions of law or fact common to the class; the claims or defenses of the representative parties are typical of the claims or defenses of the class; and the representative parties will fairly and adequately protect the interests of the class.  
    FED. R. CIV. P. 23(a); see Wal-Mart Stores, Inc., v. Dukes, 564 U.S. 338, 345 (2011). The party must also demonstrate that the action is maintainable as a class under Rule 23(b). FED. R. CIV. P. 23(b); see Amchem Products, Inc., v. Windsor, 521 U.S. 591, 614 (1997). To do so here, the petitioners must establish that the Secretary "has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." FED. R. CIV. P. 23(b)(2).
     
    Commonality  
    We begin our Rule 23(a) analysis with commonality, a requirement that has proven problematic for prior class action petitioners at this Court. See Monk, 30 Vet.App. at 175-81. In Wal-Mart, the Supreme Court held that Rule 23(a)(2) requires a "common contention . . . of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." 564 U.S. at 350. The Supreme Court emphasized that "'[w]hat matters to class certification . . . is not the raising of common 'questions'—even in droves—but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.'" Id. (quoting Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. REV. 132 (2009)). The existence of even one such question is sufficient to satisfy the Rule 23(a)(2) commonality requirement. Id. at 359.
     
    In Monk, a plurality of the en banc Court found that a petition that alleged that the total time it took for VA to decide a veteran's benefits appeal—from the filing of an NOD with an RO decision to the issuing of a Board decision—was unconstitutionally or unreasonably long lacked commonality because it did not identify a "common question for the petitioners' and putative class's cause of delay." 30 Vet.App. at 181. Although that position was not adopted by a majority of the en banc Court, see id. at 184-205, the plurality indicated that "a class proceeding may be an appropriate vehicle to challenge systemic deficiencies . . . when the putative class targets specific polices or practices that allegedly violate the law." Id. at 181 (citing Parsons v. Ryan, 754 F.3d 657 (9th Cir. 2014)).
     
    The petitioners in this case have sought certification of a class of all VA benefits claimants who have waited more than two years from the filing of their Substantive Appeals for VA to certify and transfer their cases to the Board. Included in that class would be not only claimants who are
    standing in line simply waiting for pre-certification review, but also those receiving additional development and readjudication resulting from pre-certification review. See supra pt. II.B.
     
    Factual and legal differences among class members' claims will prove fatal to commonality when those differences "'have the potential to impede the generation of common answers'" to the questions proposed by the class. Wal-Mart, 564 U.S. at 350 (quoting Nagareda, 84 N.Y.U. L. REV. at 132)). The petitioners here have identified legal and factual questions that they believe are common to this putative class; namely, whether a two-year delay to certify and transfer cases to the Board constitutes a per se violation of class members' due process rights or is per se unreasonable under Telecommunications Research & Action Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984) (TRAC), and Martin v. O'Rourke, 891 F.3d 1338 (Fed. Cir. 2018). See Pet. at 17; Petitioner's Reply at 2-4. The question whether differences such as those here would impede the generation of common answers divided the Court in Monk. To the extent that the Monk plurality decision would affect the commonality analysis in this case, we will sua sponte modify the class definition to reflect our ultimate merit determination. See Robidoux v. Celani, 987 F.2d 931, 937 (2d Cir. 1993) ("A court is not bound by the class definition proposed in the complaint and should not dismiss the action simply because the complaint seeks to define the class too broadly."); see also Powers v. Hamilton Cty. Pub. Def. Comm'n, 501 F.3d 592, 619 (6th Cir. 2007) (upholding the district court's modifications of the proposed class because "district courts have broad discretion to modify class definitions" and observing that "the district court's multiple amendments merely showed that the court took seriously its obligation to make appropriate adjustments to the class definition as the litigation progressed"); Schorsch v. Hewlett-Packard Co., 417 F.3d 748, 750 (7th Cir. 2005) (acknowledging that "[l]itigants and judges regularly modify class definitions").
     
    Our concurrent resolution of the petitioners' request for class certification and the merits of their underlying petition counsels in favor of modification, particularly given our conclusion in part V.A.2 below that delays associated with a portion of pre-certification review are unreasonable. See Wal-Mart, 564 U.S. at 351 (noting that a court's "rigorous analysis" of the Rule 23(a) requirements frequently entails "some overlap with the merits of the plaintiff's underlying claim" because "'class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action'" (quoting General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 160 (1982))). Accordingly, we narrow the class to include only those claimants who have been standing in line waiting more than 18 months since filing their Substantive Appeals.3
     
    As the Secretary conceded at oral argument, such a modified class satisfies the Rule 23(a)(2) commonality requirement. Oral Argument at 58:00-:40. But even without that concession, we would hold that the modified class presents common questions of law or fact sufficient to establish commonality under any standard.
     
     
     
     
     
    3 We do not fault petitioners for zealously advocating for what they perceived to be the broadest viable class. It makes little sense to mandate, as our dissenting colleague suggests, that petitioners request a narrower class before knowing how the Court would rule on the original class they requested.
    Numerosity, Typicality, and Adequacy of Representation  
    The modified class also satisfies each of the remaining Rule 23(a) requirements. The Secretary initially conceded in his response to the petition that the proposed class was sufficiently numerous to satisfy Rule 23(a)(1), Secretary's Amended Resp. at 4, and he confirmed at oral argument that the modified class would likewise meet that requirement, Oral Argument at 1:01:38-
    :57.
     
    The Secretary also conceded at oral argument that the modified class met the typicality requirement, as there were no longer any unique defenses among class members that would prevent aggregate resolution of the petition. Id. at 1:00:24-:44; see Ellis v. Costco Wholesale Corp., 657 F.3d 970, 984 (9th Cir. 2011) ("The test of typicality is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct. Typicality refers to the nature of the claim or defense of the class representative, and not to the specific facts from which it arose or the relief sought." (internal quotations omitted)); Robidoux, 987 F.2d at 936-38 (explaining that the "typicality requirement is satisfied when each class member's claim arises from the same course of events and each class member makes similar legal arguments to prove the defendant's liability," despite "minor variations in the fact patterns underlying individual claims," and finding that "the typicality requirement plainly was met with respect to persons suffering delays with respect to the applications for benefits" under two state assistance programs because the alleged delay "stems from the same cause").
     
    And, the Secretary conceded that petitioners Godsey and Whitfield would be adequate representatives of the class because they did not have any interests adverse to the putative members of the modified class. Oral Argument at 1:01:38-:57; see Amchem, 521 U.S. at 625-26 ("The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between named parties and the class they seek to represent. '[A] class representative must be part of the class and possess the same interest and suffer the same injury as the class members.'" (quoting East Tex. Motor Freight System, Inc., v. Rodriguez, 431 U.S. 395, 403 (1977))). With these concessions, the modified class meets the Rule 23(a) requirements for class certification.
     
    Rule 23(b)(2)  
    In addition to the Rule 23(a) requirements, a party seeking class certification must also demonstrate that the proposed class is maintainable under Rule 23(b). See Wal-Mart, 564 U.S. at
    345. The petitioners have sought to certify a class under Rule 23(b)(2), which "permits a court to certify a case for class-action treatment if 'the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.'" Monk, 30 Vet.App. at 181 (quoting FED. R. CIV. P. 23(b)(2)). As the Supreme Court explained in Wal-Mart, "[t]he key to the (b)(2) class is 'the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.'" 564 U.S. at 360 (quoting Nagareda, 84 N.Y.U. L. REV. at 132)). "Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class
    member would be entitled to a different injunction or declaratory judgment against the defendant."
    Id. at 360-61.
     
    The relief that the petitioners request in this case—a single injunction requiring the Secretary to certify and transfer all class members' cases to the Board within a time certain, see Pet. at 2—"perforce affect[s] the entire class at once" and is, therefore, precisely the type of relief contemplated by Rule 23(b)(2). Wal-Mart, 564 U.S. at 361-62. Accordingly, the Court concludes that the petitioners have met their burden of demonstrating that class certification is appropriate in this case.4 See Amchem, 521 U.S. at 613-14; Monk, 30 Vet.App. at 174. Before certifying the class, however, the Court must address whether the petitioners' counsel will adequately represent the class.
     
    Adequacy of Class Counsel Under Rule 23(g)  
    "Unless a statute provides otherwise, a court that certifies a class must appoint class counsel." FED. R. CIV. P. 23(g)(1). "When one applicant seeks appointment as class counsel, the court may appoint that applicant only if the applicant is adequate under Rule 23(g)(1) and (4)." FED. R. CIV. P. 23(g)(2). "The court may not appoint class counsel by default." ADVISORY COMMITTEE'S NOTES to FED. R. CIV. P. 23.
     
    Rule 23(g)(1) provides, in relevant part, that, in appointing class counsel, the court:
     
    must consider: the work counsel has done in identifying or investigating potential claims in the action; counsel's experience in handling class actions, other complex litigation, and the types of claims asserted in the action; counsel's knowledge of the applicable law; and the resources that counsel will commit to representing the class; [and] may consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class[.]  
    FED. R. CIV. P. 23(g)(1)(A)-(B). Rule 23(g)(4) mandates that "[c]lass counsel must fairly and adequately represent the interests of the class." FED. R. CIV. P. 23(g)(4).
     
    The Court is satisfied that petitioners' counsel will adequately represent the class. Counsel has heretofore zealously represented the petitioners by diligently and competently identifying,
     
    4 We do not share our dissenting colleague's view that the Court should categorically decline to certify classes because class or aggregate actions may be more difficult to manage than cases involving individual petitions. Post at
    19. Manageability is generally not a concern in Rule 23(b)(2) class actions. See Rodriguez v. Hayes, 591 F.3d 1105, 1125 (9th Cir. 2010). Even in actions brought under Rule 23(b)(3) where manageability is a mandatory consideration, potential difficulty managing a class action "will rarely, if ever, be in itself sufficient to prevent certification of a class." Klay v. Humana, Inc., 382 F.3d 1241, 1272 (11th Cir. 2004). In any event, we see no reason to deny class certification in this case on manageability grounds—this case is highly manageable, particularly compared to the massive multistate litigations routinely certified as class actions by district courts. See, e.g., In re Qualcomm Antitrust Litigation, 328 F.R.D. 280, 294 (N.D. Cal. Sept. 27, 2018) (certifying a nationwide class with between 232.8 and 250 million potential members).
    investigating, presenting, and defending claims for relief, including in various pleadings and at oral argument. Counsel has submitted affidavits reflecting considerable experience in handling class action cases and other complex litigation, as well as veterans law cases in general. See Pet. at Exs. L-M. Those affidavits also reflect that counsel is able and willing to commit whatever resources are necessary to adequately represent the class in this petition, and counsel's actions thus far confirm those assertions. Id. Given the foregoing, the Court concludes that the petitioners' counsel is adequate to represent the class and will appoint said counsel as counsel for the class.
     
    Other Matters  
    Two final notes are necessary before we certify the modified class. First, although Rule 23(b)(2) does not require that the party seeking class certification demonstrate that "a class action is superior to other available methods for fairly and efficiently adjudicating the controversy" like Rule 23(b)(3) does, we nevertheless address that issue and conclude that in this case a class action decision is superior to a precedential decision as to a single petitioner. As the Federal Circuit made clear in Ebanks, petitions alleging systemic delay are "best addressed in the class-action context, where the court could consider class-wide relief" that would inure to all similarly situated claimants. 877 F.3d at 1039-40 (questioning "the appropriateness of granting individual relief to veterans who claim unreasonable delays in VA's first-come-first-served queue" because "[g]ranting a mandamus petition [for an individual] may result in no more than line-jumping without resolving the underlying problem of overall delay"). Moreover, deciding this petition as a class empowers the Court to monitor and enforce its order more easily and efficiently than would be possible through the filing of individual petitions seeking compliance in each claimant's case. See Monk, 855 F.3d at 1321 (emphasizing that class actions "could be used to compel correction of systemic error and to ensure that like veterans are treated alike"). In short, a class action decision is a more efficient and effective vehicle for resolving this case than a precedential decision focused on an individual veteran's case.
     
    Second, given our concurrent resolution of the class certification request and the merits of the underlying petition, there is no need to provide notice of certification to the affected class members in this case. This conclusion, however, is based on the unique circumstances of this case and should not be construed as a holding that class certification notice is not necessary in future cases. Whatever the Court ultimately decides about the necessity of notice in future class actions before our Court, we are satisfied that notice of class certification is not necessary here. See ADVISORY COMMITTEE'S NOTES TO FED. R. CIV. P. 23 (emphasizing that courts have discretion to decide whether to direct notice of certification of a Rule 23(b)(2) class).
     
    Certification of the Modified Class  
    For the reasons outlined above, the Court modifies the class proposed by the petitioners and, pursuant to Rule 23(c)(1), certifies the following modified class for purposes of this petition:
    All VA benefits claimants who filed a Substantive Appeal at least 18 months prior to the date of this order and who are waiting for VA to initiate pre-certification review of their cases.
    Having decided the request for class certification, the Court now proceeds to the merits of the class members' petition.5
     
    MERITS OF THE CLASS PETITION This Court has authority to issue extraordinary writs in aid of its jurisdiction pursuant to the All Writs Act, 28 U.S.C. § 1651(a). See Cox v. West, 149 F.3d 1360, 1363-64 (Fed. Cir. 1998); Kelley v. Shinseki, 26 Vet.App. 183, 185 (2013). However, "[t]he remedy of mandamus is a drastic one, to be invoked only in extraordinary situations." Kerr v. U.S. Dist. Court for N. Dist. of Cal., 426 U.S. 394, 402 (1976). Three conditions must be met before the Court can issue a writ: (1) The petitioner must demonstrate the lack of adequate alternative means to obtain the desired relief, thus ensuring that the writ is not used as a substitute for an appeal; (2) the petitioner must demonstrate a clear and indisputable right to the writ; and (3) the Court must be convinced, given the circumstances, that issuance of the writ is warranted. See Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380-81 (2004); Kelley, 26 Vet.App. at 186-92.
     
    The petitioners have argued that a writ of mandamus is necessary to compel the Secretary to expedite the process of certifying and transferring cases to the Board after the filing of a Substantive Appeal. Pet. at 1-2. The petitioners have asserted that they, and all similarly situated members of the class, have no adequate alternative means to obtain relief from the Secretary's substantial certification delays because there is "no established procedures through which claimants can force the Secretary to certify their appeals," and the Secretary, in any event, routinely fails to respond to individual requests for certification. Id. at 14. The petitioners contend that the class has a clear and indisputable right to a writ of mandamus because the Secretary's failure to timely certify cases to the Board deprives class members of their Fifth Amendment right to due process of law, constitutes agency action unlawfully withheld or unreasonably delayed within the meaning of 38 U.S.C. § 7261(a)(2) and 5 U.S.C. § 555(b), and prevents them from having their cases "considered and decided [by the Board] in regular order according to its place upon the docket" in violation of 38 U.S.C. § 7107(a)(1). Id. at 1-2, 7-13. Although the Secretary conceded that the petitioners have no adequate alternative means to obtain their requested relief, Secretary's Amended Resp. at 31-32, he asserted that the petitioners failed to carry their burden of demonstrating entitlement to a writ under any of their theories of the case, id. at 16-35.
     
    Because "a claim that a plaintiff has been denied due process because of delayed agency action is essentially no different than an unreasonable delay claim," and because "if there is any difference at all, it is that an unreasonable delay claim would likely be triggered prior to a delay becoming so prolonged that it qualifies as a constitutional deprivation of property," Vietnam Veterans of Am. v. Shinseki, 599 F.3d 654, 660 (D.C. Cir. 2010), we begin our analysis with the petitioners' argument that the time that it takes the Secretary to timely certify and transfer cases to the Board is unreasonable. See also Martin, 891 F.3d at 1348-49 ("If the Veterans Court . . . , finds a delay unreasonable (or not unreasonable), it need not separately analyze the due process claim based on that same delay.").
     
     
    5 In certifying the modified class, the Court is not expressing an opinion as to whether those excluded from the class have been subject to unconstitutional or unreasonable delay in the appeal certification process.
    Unreasonable Delay  
    Martin v. O'Rourke  
    Congress empowered this Court to "compel action of the Secretary unlawfully withheld or unreasonably delayed." 38 U.S.C. § 7261(a)(2); see Monk, 855 F.3d at 1319. In Martin, the Federal Circuit stated that the Court may use its mandamus authority to compel such Secretarial action, 891 F.3d at 1343-44, holding that the factors outlined in TRAC provide an appropriate framework for analyzing claims of unreasonable agency delay, id. at 1338. Those factors include:
     
    (1) The time agencies take to make decisions must be governed by a "rule of reason"; (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court need not "find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed."
     
    TRAC, 750 F.2d at 80 (citations omitted).
     
    Martin was a consolidated case involving nine petitions for writs of mandamus that alleged that the time that VA takes to decide appeals after the filing of an NOD is unreasonable. 891 F.3d at 1342. Although the Federal Circuit did not reach the merits of the petitions, it provided extensive guidance to the Court on how to analyze each of the TRAC factors when deciding petitions based on unreasonable agency delay.
     
    The Federal Circuit began by explaining that the first TRAC factor—whether VA's decisionmaking process is governed by a rule of reason—"is considered to be the most important factor in some circuits." Martin, 891 F.3d at 1345. To analyze this factor, along with the "relate[d]" second factor, the absence of a specific congressional timetable for action, the Court must look to the particular agency action delayed because it "is reasonable that more complex and substantive agency actions take longer than purely ministerial ones." Id. at 1345-46. The Court "may also consider whether the delays complained of are based on complete inaction by the VA, or whether the delays are due in part to the VA's statutory duty to assist a claimant in developing his or her case." Id. at 1346. In noting this consideration, the Federal Circuit specifically directed the Court to "consider whether delays are due to the agency's failure to perform certain ministerial tasks such as filling out the form certifying the appeal to the [Board] and docketing by the [Board]." Id. The Federal Circuit opined, in a footnote, that they could conceive of "no reasonable explanation for the historic delays that have occurred during appeal certification . . . and during transfer to the [Board]," ultimately calling those delays "inexplicable." Id. at 1346 n.9. Nevertheless, the Federal Circuit indicated that, due to the highly factual nature of the rule-of- reason inquiry, there was "no reason to articulate a hard and fast rule with respect to the point in
    time at which a delay becomes unreasonable," reserving that case-specific determination for this Court. Id. at 1346.
     
    Regarding the other TRAC factors, the Federal Circuit observed that the third factor would likely always weigh in a VA benefits claimant's favor because "[v]eterans' disability claims always involve human health and welfare." Id. Considerations relevant to the fourth factor—the effect of expediting delayed action on agency activities of a higher or competing priority—include VA's limited resources, the fact that the agency is in a better position than the courts to evaluate how to use those resources, and the effect of expediting action on other claimants, including any undesirable line-jumping. Id. at 1347. The Federal Circuit further explained that the fifth TRAC factor— the nature and extent of the interests prejudiced by delay—"incorporates an analysis of the effect of a delay on a particular veteran," meaning that the factor may weigh more heavily in favor of unreasonableness when "a particular veteran is wholly dependent on the requested disability benefits," as opposed to a veteran who "has a sustainable source of income outside of the VA benefits system." Id. And the Federal Circuit declared that the final TRAC factor may weigh in favor of issuing a writ "even where there is no evidence of bad faith" on the part of VA. Id. at 1348. With these principles in mind, we turn to the petitioners' allegations in this case.
     
    Application to the Instant Class Petition
    The petitioners have argued that the time that it takes the Secretary to certify and transfer cases to the Board after the filing of a Substantive Appeal is so egregious under TRAC and Martin as to warrant issuance of a writ. See Pet. at 10-13; Petitioners' Reply at 9-13. Although the class certified by the Court narrowed the relevant period to the time it takes for the Secretary to initiate pre-certification review, see supra pts. III.A, E, the petitioners' initial arguments remain relevant to the Court's reasonableness inquiry. Specifically, the petitioners asserted that there is no rule of reason that would support a multi-year adjudication delay following the filing of a Substantive Appeal; the Secretary's failure to timely act on Substantive Appeals conflicts with VA's statutory mandate to decide appeals in docket order; that delay harms the health and human welfare of veterans and their dependents, who are a protected class of individuals; and there is no higher or competing agency priority that justifies such delay. Pet. at 11-13. The petitioners further argued that nothing in VAIMA would remedy the current delays in processing legacy appeals and that the Court, therefore, should not factor the modernized appeal system into its TRAC and Martin analysis. Petitioners' Reply at 14-15.
     
    The Secretary initially argued that, although the third and fifth TRAC factors weighed in the petitioners' favor, the remaining TRAC factors counseled against finding unreasonableness in this case. See Secretary's Amended Resp. at 24-31. However, when the Court asked him at oral argument which TRAC factors would be in VA's favor if the relevant period was narrowed to just the time that claimants waited for pre-certification review, the Secretary conceded that all the TRAC factors except factors two and four would weigh in the petitioners' favor. Oral Argument at 1:10:48-:12:00.
     
    We agree with the petitioners that the current time that it takes the Secretary to initiate pre- certification review after the filing of a Substantive Appeal is per se unreasonable under TRAC and Martin. Although the Court is cognizant of the number of Substantive Appeals filed each year and
    the myriad other tasks that the ROs perform, there is simply no rule of reason that can justify a multiyear wait before an RO even looks at an appealed case to determine whether further development and/or adjudication is warranted before certifying and transferring a case to the Board. Such delays are particularly intolerable because they consist of nothing but waiting in line: no development, no adjudication, no action whatsoever on the part of VA. See Martin, 891 F.3d at 1346 (explaining that the "rule of reason" analysis may take into account whether a delay is "based on complete inaction," as opposed to compliance with statutory duties). The first and "most important" TRAC factor, id. at 1345, therefore weighs heavily in the petitioners' favor.
     
    The third, fourth, and fifth TRAC factors also support a finding of unreasonableness. As the Federal Circuit noted about the third TRAC factor in Martin, 891 F.3d at 1346, and the Secretary conceded in this case, Secretary's Amended Resp. at 29, the adjudication of veterans benefits claims inherently involves health and human welfare, making the alleged delay in conducting pre-certification review "less tolerable," TRAC, 750 F.2d at 80. See Erspamer v. Derwinski, 1 Vet.App. 3, 10 (1990) ("Claims for benefits due to military service clearly implicate human health and welfare concerns as distinguished from economic regulation.").
     
    Regarding the fourth TRAC factor, even though the Secretary contended at oral argument that expediting pre-certification review would have an adverse impact on agency activities of a higher or competing priority, Oral Argument at 1:11:14-12:00, he admitted at several points during the argument that VAIMA gives primacy to processing legacy appeals and that he has recently targeted for expedited processing precisely the types of cases involved in this class action, id. at 35:07-36:03, 45:48-46:35, 1:10:34-:44. By allocating additional resources to legacy appeals processing to try to reach his goal of having no legacy appeals pending at ROs by June 2020, id. at 35:27-:35, the Secretary has already unequivocally indicated that the class members' cases are of the utmost priority. And any concern that granting the instant petition would require the Secretary to allocate additional resources away from other RO activities is mitigated by the fact that the classwide relief requested in this petition would inure to the claimants who had already waited the longest for pre-certification review, without the undesirable consequence of line- jumping associated with individual petitions alleging delay. See Ebanks, 877 F.3d at 1040 (advocating for aggregate resolution of systemic delay claims to avoid line-jumping); Monk, 855 F.3d at 1321 (emphasizing that class actions "could be used to compel correction of systemic error and to ensure that like veterans are treated alike"). In short, the fourth TRAC factor does not support the Secretary's position.
     
    As for the fifth TRAC factor, although the aggregate nature of this case prevents the Court from looking at the individual circumstances of each class member's case to assess the nature and extent of the interests prejudiced by the delay, see Martin, 891 F.3d at 1347 (noting that the "fifth factor incorporates an analysis of the effect of a delay on a particular veteran"), we believe it is sufficient to observe, as the Federal Circuit did in Martin, that many VA beneficiaries—likely many of the class members in this case—"depend on [VA] disability benefits for basic necessities, such as food, clothing, housing, and medical care." Id. Moreover, as this Court recognized in Erspamer, the interests prejudiced by systemic delay may "transcend" those of a single petitioner because "'excessive delay saps the public confidence in an agency's ability to discharge its responsibilities and creates uncertainty for the parties, who must incorporate the potential effect of possible agency decisionmaking into future plans.'" 1 Vet.App. at 10 (quoting Potomac Electric
    Power Company v. ICC, 702 F.2d 1026, 1034 (D.C. Cir. 1983)). Indeed, the Secretary conceded at oral argument that the fifth TRAC factor weighed in favor of the petitioners and the class in this case. Oral Argument at 1:10:45-:46.
     
    The remaining TRAC factors do not tip the scales towards a finding of reasonableness. Specifically, the sixth TRAC factor does not appear to weigh substantially in either party's favor: The pleadings do not reflect and the petitioners do not allege bad faith on the part of the Secretary in taking so long to conduct pre-certification review, but "[a] writ may be appropriate under the TRAC analysis even where there is no evidence of bad faith." Martin, 891 F.3d at 1348 (explaining that "the Veterans Court need not find 'any impropriety lurking behind agency lassitude' to hold that agency action is unreasonably delayed" (quoting TRAC, 750 F.2d at 80)). The lack of bad faith by the Secretary is, at most, de minimis support for his position.
     
    And, although the second TRAC factor weighs in the Secretary's favor because Congress has previously declined to impose an appeal certification timeline on VA, see, e.g., American Heroes COLA Act of 2015, H.R. 677, 114th Cong. § 13 (proposing a one-year certification deadline after the filing of a Substantive Appeal); VA Appeals Backlog Relief Act of 2015, H.R. 1302, 114th Cong. § 2 (same); VA Appeals Backlog Relief Act of 2015, H.R. 5349, 113th Cong.
    § 2 (same); Veterans' Claims Administrative Equity Act of 1991, H.R. 141, 102d Cong. § 2 (proposing a grant of interim benefits when VA did not certify a denied claim to the Board within 180 days of the filing of a Substantive Appeal), that fact is not sufficient to overcome the aforementioned factors that emphatically demonstrate that the time the class members have waited for pre-certification review is unreasonable. See In re A Cmty. Voice, 878 F.3d 779, 787 (9th Cir. 2017) ("Even assuming that EPA has numerous competing priorities under the fourth factor and has acted in good faith under the sixth factor, the clear balance of the TRAC factors favors issuance of the writ.").
     
    Thus, the petitioners have demonstrated a clear and indisputable right to a writ of mandamus. See Freeman v. Shinseki, 24 Vet.App. 404, 417 (2011). Unlike our dissenting colleague, see post at 21, we are not content to wait for the Secretary to remedy these unreasonable delays on his own. The Secretary has had many years to act and initiate pre-certification review of class members' cases, and he has failed to do so. Ms. Whitfield, for example, was forced to wait over six years for the Secretary to act on her Substantive Appeal based on no fault of her own. Simply put: the time has come for judicial intervention.
     
    Given the foregoing, and given the Secretary's earlier concession that the petitioners have no adequate alternative means to obtain the relief they seek, Secretary's Amended Resp. at 31-32, the Court is convinced that issuance of a writ is warranted in this case to ensure that the class members receive timely pre-certification review of their appealed cases so that any necessary further development may occur or certification may proceed. See Cheney, 542 U.S. at 380-81; Kelley, 26 Vet.App. at 186-92.
     
    Remedy Having determined that the delays experienced by the class awaiting pre-certification review are unreasonable, the Court must now determine what relief is appropriate to remedy that
    classwide harm. Although the petitioners initially asked the Court to order the Secretary to certify all class members' cases to the Board within 60 days of granting their petition, Pet. at 2, that prayer for relief is somewhat inconsistent with the modified class that the Court ultimately certified. See supra pt. IV.F. The Court will order the Secretary to conduct pre-certification review of all cases that fit within the class definition, and for each class member, within 120 days after the date of this order, either (1) certify his or her case, or (2) affirmatively initiate any development or adjudication activities necessary for certification or resolution at the RO. We believe that this remedy properly balances the class members' interest in having their Substantive Appeals expeditiously processed with VA's statutory duty to assist the class members in substantiating their appealed claims.
     
    We recognize that the Secretary will likely have to reorganize his adjudication priorities and allocate additional resources to the ROs to comply with this Court order. Ordinarily, the Court affords the Secretary great deference in how he chooses to run the day-to-day operations of the agency. But extraordinary circumstances call for extraordinary measures, and the Secretary's longstanding failure to remedy the unreasonable delays in accomplishing pre-certification review, resulting in claimants waiting in line for years with no action being taken by VA, has compelled the Court's intervention in this case. See United States v. Black, 128 U.S. 40, 48 (1888) (explaining that a court should "not interfere by mandamus with the executive officers of the government in the exercise of their ordinary official duties, even where those duties require an interpretation of the law, the court having no appellate power for that purpose," but holding that, "when [executive officers of the government] refuse to act in a case at all, . . . a mandamus may be issued to compel them").
     
    The Petitioners' Other Arguments  
    Given this disposition, the Court need not address the petitioners' argument that the class was denied due process of law under the Fifth Amendment by being subjected to the aforementioned delays while awaiting pre-certification review. See Martin, 891 F.3d at 1349-50. Nor are we required to address the petitioners' alternative statutory argument that such delays violated section 7107(a)(1) because that argument could not result in a greater remedy for the class. See Mahl v. Principi, 15 Vet.App. 37, 38 (2001).
     
    CONCLUSION Upon consideration of the foregoing, it is
     
    ORDERED that the class proposed by the petitioners is modified consistent with this decision. It is further
     
    ORDERED that, pursuant to Rule 23(c)(1), the following class is certified for purposes of this petition: All VA benefits claimants who filed a Substantive Appeal at least 18 months or more prior to the date of this order and who are waiting for VA to initiate pre-certification review of their cases. It is further
    ORDERED that, pursuant to Rule 23(g), petitioners' counsel is appointed as class counsel.
    It is further
    ORDERED that the petition is granted in part. The Secretary shall conduct pre- certification review of all cases that fit within the class definition, and for each class member, within 120 days after the date of this order, either (1) certify his or her case, or (2) affirmatively initiate development or adjudication activities necessary for certification or resolution at the RO. It is further
     
    ORDERED that, within 60 days of the date of this order, the Secretary file with the Court a status update, which includes (1) the names and VA claims numbers for all members of the class;
    (2) the number of cases in the class that are still awaiting pre-certification review; (3) the number of cases in the class that have been processed in compliance with this order—i.e., certified or afforded additional development and/or adjudication by the RO following pre-certification review; and (3) any other information the Secretary deems relevant to his compliance with the Court order. The Court may subsequently order further status updates as necessary. See FED. R. CIV. P. 23(d).
     
    DATED: June 13, 2019 PER CURIAM.
     
    PIETSCH, Judge, dissenting: I respectfully dissent from the majority's opinion pertaining to both class certification and granting the petition on the merits.
     
    Although the Federal Circuit held that this Court has the authority to certify a class or otherwise aggregate claims, I still question whether we should exercise that authority. Monk, 855 F.3d at 1320-21. In refusing to entertain class actions, the Court previously noted that a class action would be "highly unmanageable" and, in the context of appeals, unnecessary given the binding effect of the Court's precedential decisions. See Harrison v. Derwinski, 1 Vet.App. 438, 438-39 (1991) (en banc order). I remain convinced that certifying and managing a class at an appellate Court will be troublesome. I am particularly concerned about trying to manage a class action where the Court has still not adopted any rules to govern how a class, once certified, will proceed or be administered at the Court. Although the Court has stated we will use Rule 23 as a guide for deciding requests for class certification, the Court has not determined how a class will be overseen. Without some procedures in place, I am deeply concerned with the majority's decision to certify a class.
     
    As to the commonality of the class being certified, the majority noted that in Monk, a plurality of this Court held that the proposed class in that case lacked commonality where there was not a "common question for the petitioners' and putative class members' cause of the delay." 30 Vet.App. at 181. The majority here simply modifies the class to avoid the commonality problems that derailed class certification in Monk. In doing so, the majority focuses on the outcome of the case, modifying the class so it will be successful on the merits. Indeed, the majority states the concurrent resolution of the request for class certification and the underlying merits of the petition favors modification. While I agree with the majority that a class certification analysis under Rule 23(a) involves overlap with the merits, I do not agree with the notion that the class should be modified so that it will be successful on the merits. I see no reason why the class certification analysis under Rule 23(a) should be different simply because the Court is also deciding the merits of the petition. It seems to me that the majority has unnecessarily created a "chicken or egg" situation; in other words, it is difficult to tell whether the class certification
    decision or the merits determination comes first. Absent a request for modification of the class by the petitioners, in my view, it appears the majority made a determination on the merits and certified a class based on that determination. I note that, at oral argument, petitioners were strongly against modification. When faced with several opportunities to modify the class, petitioners' counsel refused. Oral Argument at 5:30, 14:34. Although counsel ultimately acquiesced when asked whether petitioners would rather lose their case than modify the class, on rebuttal, counsel again argued against modification. Compare id. at 15:30 to 20:36 with 1:14:56.
     
    The proposed class in this case suffers many of the same commonality flaws that were present in Monk. 30 Vet.App. at 178-79. As described by the majority, the process of certifying an appeal to the Board is not as simple as filing out a form. Many times, including in the cases of some of the named petitioners, additional development must be completed before an appeal may be certified to the Board. The myriad of reasons for the delays involved in cases pending more than two years from the time of filing a Substantive Appeal to the case being certified to the Board counsels against commonality. See Monk, 30 Vet.App. at 178 (finding it is impossible to determine whether VA's delay in adjudicating claims is reasonable without knowing the reason for the delay). By modifying the class, the majority seems to skip the commonality analysis, instead modifying the class so that commonality exists. In doing so, the majority conducts almost no analysis, noting the Secretary's concession that a modified class would meet the commonality requirement and stating that, even without that concession, the majority would find commonality, but not explaining why.
     
    As to the merits of the petition, I agree with most of the majority's analysis concerning the reasonableness of the time the Secretary takes to begin the pre-certification review after a claimant has filed a Substantive Appeal. The delay involved in the cases of the modified class members for VA to even pick up a claimant's file to begin pre-certification review is inexcusable. Where I differ from the majority is with respect to TRAC factors two and four. See TRAC, 750 F.2d at 80. Those factors consider where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute and the effect of expediting delayed action on agency activities of a competing priority.
     
    As the majority states, Congress has chosen not to impose a timeline on VA for certifying appeals to the Board. My disagreement with the majority is only as to how much weight this factor deserves. As to the fourth TRAC factor, the Secretary has recognized the delays associated with legacy appeals and is taking action to resolve these delays. To me, this factor, along with the second TRAC factor, are the deciding factors in this case.
     
    At oral argument, the Secretary detailed the steps VA has taken to work legacy appeals, noting that the oldest cases are being worked on first. The Secretary has recognized that these cases have been allowed to linger for far too long and has put in place a plan to address them. At this point, it seems to be nothing more than an empty gesture for the Court to insert itself into the Secretary's process in dealing with these appeals. Because VA is addressing this problem, I do not see any reason to inject ourselves into the process without some indication that the Secretary's current plan has failed. Here, not only is the majority ordering the Secretary to act on these cases within a much shorter time frame than VA had planned and budgeted, the Court is simultaneously
    certifying the Court's first class action as part of its decision. I fear there will be some confusion and delay as both the Court and the Secretary deal with a class action.
     
    Because VA is aware of the delay associated with these legacy appeals and is actively working on them, I would allow the Secretary to complete what he has started. If, at some point in the future, it becomes clear that the Secretary's plan for working on these appeals is insufficient, then I would consider getting involved. Until that time, I would let the Secretary run his agency.
    godsey-v-wilkie.pdf

    Tbird
    In the context of a claim of unreasonable delay, the first stage of judicial inquiry is to consider whether the agency's delay is so egregious as to warrant mandamus. Although this court has decided several cases involving claims of unreasonable delay, *see, e.g., PCHRG v. FDA,* 740 F.2d 21 (D.C. Cir. 1984); *Public Citizen Health Research Group v. Auchter,* 702 F.2d 1150 (D.C. Cir. 1983); *PEPCO,* 702 F.2d 1026 (D.C. Cir. 1983); *MCI Telecommunications Corp. v. FCC ("MCI"),* 627 F.2d 322 (D.C. Cir. 1980); *Nader v. FCC,* 520 F.2d 182 (D.C. Cir. 1975), we have not articulated a single test for when the writ should issue. On reading these cases together, however, one can discern the hexagonal contours of a standard. Although the standard is hardly ironclad, and sometimes suffers from vagueness, it nevertheless provides useful guidance in assessing claims of agency delay: (1) the time agencies take to make decisions must be governed by a "rule of reason," *PEPCO,* 702 F.2d at 1034; *MCI,* 627 F.2d at 340; (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason, *PCHRG v. FDA,* 740 F.2d at 34-35; *PCHRG v. Auchter,* 702 F.2d at 1158, n. 30; *PEPCO,* 702 F.2d at 1034; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; PCHRG v. FDA, 720 F.2d at 34; *PCHRG v. Auchter,* 702 F.2d at 1157; *see also Blankenship v. Secretary of Health, Education, and Welfare,* 587 F.2d 329, 334 (6th Cir. 1978); (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority, *see, e.g., PCHRG v. FDA,* 740 F.2d at 34; *PCHRG v. Auchter,* 702 F.2d at 1158; (5) the court should also take into account the nature and extent of the interests prejudiced by delay, *PCHRG v. FDA,* 740 F.2d at 35; and (6) the court need not "find any impropriety lurking behind agency lassitude in order to hold that agency action is `unreasonably delayed.'" *PCHRG v. FDA,* 740 F.2d at 34. HARRY T. EDWARDS, Circuit Judge:
    The Telecommunications Research Action Center ("TRAC") and several other not-for-profit corporations and public interest groups petition this court for a writ of mandamus to compel the Federal Communications Commission ("FCC" or "the Commission") to decide certain unresolved matters now pending before the agency. The essence of TRAC's claim is that the FCC has unreasonably delayed determining whether American Telephone and Telegraph Company ("ATT") must reimburse ratepayers for two separate instances of allegedly unlawful overcharges. The first instance relates to the rate of return earned by ATT and the Bell System on interstate and foreign services furnished during 1978. The second concerns the treatment of expenses incurred by ATT's manufacturing subsidiary, Western Electric, in its development of "customer premises equipment" ("CPE") during 1980-1982.
    Customer premises equipment includes "all equipment provided by common carriers and located on customer premises except over voltage protection equipment, inside wiring, coin operated or pay telephones and multiplexing equipment to deliver multiple channels to the customers." American Telephone Telegraph Co. ("AT T Capitalization Request"), 91 F.C.C.2d 578, 579, n. 2 (1982), petition for review pending sub nom. GTE Service Corp. v. FCC, No. 84-4090 (2d Cir. filed June 15, 1984).
    The most important question that we face in our consideration of this interlocutory appeal is a threshold jurisdictional issue. Our resolution of this issue is of particular significance because it is dispositive of both the instant case and a similar appeal involving the Civil Aeronautics Board that was argued before this panel on the same day as this case. Seenote 22 infra.
    Our jurisdictional inquiry focuses on whether a petition to compel unreasonably delayed agency action properly lies in this court or in the District Court, or whether the two courts have concurrent jurisdiction, when any final agency action in the matter would be directly reviewable only in the Court of Appeals. Although we find the precedent in this circuit to be less than clear on this question, we conclude that, where a statute commits final agency action to review by the Court of Appeals, the appellate court has exclusive jurisdiction to hear suits seeking relief that might affect its future statutory power of review.
    On the merits of the instant appeal, we decide that, because the agency has assured us that it is now moving expeditiously to resolve the pending overcharge claims, we need not determine whether the cited delays are so egregious as to warrant mandamus. The court, however, will retain jurisdiction over this case until final disposition by the agency.
    I. BACKGROUND A. The Rate of Return on Interstate and Foreign Services in 1978
    In 1976, acting under the ratemaking authority conferred by 47 U.S.C. § 205(a), the FCC set the maximum rate of return for ATT interstate and foreign operations at 9.5 percent, with a .5 percent additional margin to encourage productivity and efficiency. The Commission agreed not to reduce ATT's interstate rates provided that its overall rate of return did not exceed ten percent. In order "to fully protect the public," however, the FCC required that ATT maintain an accounting of its relevant revenues to facilitate refunds if an excessive rate of return should occur.
    American Telephone Telegraph Co., 57 F.C.C.2d 960, 973 (1976).
    Id.
    American Telephone Telegraph Co., 58 F.C.C.2d 1, 4 (1976).
    ATT's 1978 interstate rate of return was either 10.22, 10.1, 10.02, or 9.89 percent, depending on the methodology used to calculate it. On July 20, 1979, the petitioners filed a Petition for Enforcement of Accounting with the FCC in which they requested that the Commission determine whether ATT had received excess revenues and, if so, that the FCC order appropriate relief to the ratepayers. Rather than acting directly on this petition, the Commission issued a Notice of Inquiry on October 1, 1979, soliciting comments on several issues related to ATT's earnings. Both comments and reply comments were filed by the end of 1979. The Commission has taken no further action during the almost five years since the filing of comments.
    Brief for Intervenor American Telephone and Telegraph Co. ("Brief for AT T") 5.
    Brief for AT T 6, Petitioners' Brief Supporting Petition for Mandamus and Petition for Review ("Petitioners' Brief") 4-5.
    In Matter AT T's Earnings on Interstate and Foreign Services During 1978: Notice of Inquiry, 75 F.C.C.2d 412, 413-14 (Adopted September 18, 1979; Released October 1, 1979).
    Representative Timothy Wirth, Chairman of the Subcommittee on Telecommunications, Consumer Protection and Finance of the House Committee on Energy and Commerce, has twice written to the FCC to inquire about the unexplained delay in agency action. In 1981, FCC officials responded that they expected a staff recommendation that fall. However, no such recommendation was produced. In the spring of 1984, agency officials modified their response and estimated that a staff recommendation would be issued that summer. The agency failed on this commitment, too. Now, in the face of this court action, the Commission has recently indicated that it plans to resolve the matter on or before November 30, 1984.
    Hearings on Implementation of the Nippon Telephone and Telegraph Procurement Agreement, June 9, 1981; Licensing of VHF Television Stations in New Jersey and Delaware — H.R. 2128, June 16, 1981; FCC Oversight, July 23, 1981; Cable Franchise Investigation, July 28, 1981, Before The Subcommittee on Telecommunications, Consumer Protection and Finance of the Committee on Energy and Commerce, House of Representatives, 97th Cong., 1st Sess. 481-82 (1981).
    Petitioners' Brief, Appendix.
    Letter from Daniel Armstrong, FCC Associate General Counsel, to this court (September 12, 1984).
    B. The Treatment of CPE Expenses
    In May of 1980, the FCC decided that CPE and enhanced telecommunications services should no longer be regulated under Title II of the Communications Act. It is unnecessary to detail here the effects of this order on ratemaking and carrier accounting. It suffices to note that, in order to shield the regulated market from costs appropriately allocated to the competitive market and from anticompetitive activities, the Commission required ATT to create a separate subsidiary to act in the enhanced services and CPE markets. The FCC also required that all costs associated with competitive activities, such as CPE development costs, be charged solely to this subsidiary, not passed along to the regulated ratepayer.
    "Enhanced services," as opposed to basic transmission services are those "which employ computer processing applications that act on the format, content, code, protocol or similar aspects of the subscriber's transmitted information; provide the subscriber additional, different, or restructured information; or involve subscriber interaction with stored information." 47 C.F.R. § 64.702(a) (1982).
    See Second Computer Inquiry ("Computer II"), 77 F.C.C.2d 384 (1980), *aff'd sub nom. Computer and Communications Industry Ass'n v. FCC,* 693 F.2d 198 (D.C. Cir. 1982), cert. denied sub nom. Louisiana Public Service Comm'n v. FCC,103 S.Ct. 2109 (1983).
    47 U.S.C. § 201-224 (1982).
    Computer II, 77 F.C.C.2d at 474; *Computer and Communications Industry Ass'n v. FCC,* 693 F.2d at 205, n. 22; 208, 211.
    Computer II, 77 F.C.C.2d at 467, 476-487.
    Between May 1980, and January of 1983, Western Electric spent about $500 million developing CPE. Because these development costs were expensed as they were incurred, the Commission, in an order dated November 10, 1982, expressed concern that between 1980 and 1982 regulated service ratepayers might have impermissibly contributed to recovery of these development expenses. But because the FCC concluded that it could not determine from the existing record whether ratepayer reimbursement for these expenses was warranted, it ordered ATT to provide it with additional information. Due to the importance of this question and because of the significant amount of money involved the FCC also invited public comments. ATT filed its comments in December of 1982 and other comments were filed in January and February 1983.
    AT T Capitalization Request, 91 F.C.C.2d at 581, 604-07.
    Id. at 607.
    Petitioners' Brief 11.
    On November 15, 1983, petitioners Florida Consumers Federation and others filed a Petition for Intervention and Expeditious Resolution. On May 22, 1984, Chairman Wirth inquired about the status of this matter and was told that action was expected during the summer of 1984. The Commission now says it will act with respect to the ratemaking treatment of these CPE development expenses on or before June 28, 1985. To date, though, the Commission has not acted, either on the petition or on its own inquiry into Western Electric's CPE development expenses.
    Petitioners' Brief 12.
    Petitioners' Brief, Appendix.
    Letter from Daniel Armstrong, supra note 10.
    II. JURISDICTION
    As an initial matter, this case raises two significant and recurrent jurisdictional questions. First, where a statute commits final agency action to review by the Court of Appeals, does that court have jurisdiction to hear suits seeking relief that would affect its future statutory power of review? Second, if the Court of Appeals does have jurisdiction, is that jurisdiction exclusive or concurrent with that of the District Courts?
    Although the parties have not contested our jurisdiction over the petitioners' suit, we requested them, as well as the parties to *Air Line Pilots Ass'n, International v. CAB (ALPA),* 750 F.2d 81, wherein a claim of unreasonable agency delay was filed initially in the District Court, to address in their briefs and arguments "whether a petition to compel allegedly unreasonably delayed agency action properly lies before this Court or before a United States District Court, or whether those courts have concurrent jurisdiction, when any final agency decision in the matter would be directly reviewable in this Court." Order No. 84-1035 (D.C. Cir. June 12, 1984).
    Because ALPA and the instant case raise identical jurisdictional issues, we treat them as companion cases. For the sake of economy, our discussion of these jurisdictional issues is dispositive for both ALPA and this case.
    We recognize that our precedent concerning jurisdiction over interlocutory appeals from agency action (or inaction) is somewhat inconsistent and may be confusing for litigants attempting to select the proper forum for these claims. We are convinced that this state of disarray in which we find the law is the product of innocent inadvertence, sometimes attributable to a desire by the court and parties to promptly resolve claims of unreasonable delay, and sometimes attributable to a failure by the parties to raise or to pursue jurisdictional inquiries. Nevertheless, "[j]urisdiction is, of necessity, the first issue for an Article III court. The federal courts are courts of limited jurisdiction, and they lack the power to presume the existence of jurisdiction in order to dispose of a case on any other grounds." *Tuck v. Pan American Health Organization,* 668 F.2d 547, 549 (D.C. Cir. 1981). We are therefore obliged to consider and finally resolve the question pertaining to the jurisdiction of the Court of Appeals to hear claims of the sort raised in this case and in the companion ALPA case. See note 22, supra. In deciding this issue, for the reasons hereafter enumerated, we hold that where a statute commits review of agency action to the Court of Appeals, any suit seeking relief that might affect the Circuit Court's future jurisdiction is subject to the exclusive review of the Court of Appeals.
    *Compare, e.g., Association of Nat'l Advertisers v. FTC ("National Advertisers"),* 627 F.2d 1151, 1157 (D.C. Cir. 1979), *cert. denied,* 447 U.S. 921, 100 S.Ct. 3011, 65 L.Ed.2d 1113 (1980) (holding that the District Court had general federal question jurisdiction under 28 U.S.C. § 1331 over nonfrivolous constitutional claims of agency bias and prejudgment); *Public Citizen Health Research Group v. Comm'r, Food Drug Administration ("PCHRG v. FDA"),* 740 F.2d 21, 34-35(D.C. Cir. 1984) (original jurisdiction of District Court not questioned, Court of Appeals remands to District Court for further evidence); *Public Citizen Health Research Group v. Auchter,* 702 F.2d 1150 (D.C. Cir. 1983) (original jurisdiction of District Court not questioned), *with Potomac Electric Power Co. v. ICC ("PEPCO"),* 702 F.2d 1026, 1032-33 (D.C. Cir. 1983) (initially brought in Court of Appeals, jurisdiction upheld); *MCI Telecommunications Corp. v. FCC,* 627 F.2d 322 (D.C. Cir. 1980) (initially brought in Court of Appeals, jurisdiction not questioned); *National Advertisers,* 627 F.2d at 1179 (Leventhal, J., concurring) (jurisdiction to compel agency action lies exclusively in the appellate court that has jurisdiction to review on the merits); *Environmental Defense Fund, Inc. v. Hardin,* 428 F.2d 1093, 1098-99 (D.C. Cir. 1970) (holding that Court of Appeals has jurisdiction where administrative inaction is the equivalent of an order denying relief). *See also Action for Children's Television v. FCC,* 546 F.Supp. 872, 874-75(D.D.C. 1982) (holding in favor of jurisdiction in Court of Appeals, not District Court).
    Because this holding resolves inconsistencies among our prior decisions, this part of our decision has been considered separately and approved by the whole court, and thus constitutes the law of the circuit. *See Irons v. Diamond,* 670 F.2d 265, 268 n. 11 (D.C. Cir. 1981).
    A. The Basis of Our Jurisdiction
    We think it is clear — and no party disputes this point — that the statutory commitment of review of FCC action to the Court of Appeals, read in conjunction with the All Writs Act, 28 U.S.C. § 1651(a) (1982), affords this court jurisdiction over claims of unreasonable Commission delay. Exclusive jurisdiction over review of final FCC orders is vested in the Court of Appeals by 28 U.S.C. § 2342(1) (1982) and 47 U.S.C. § 402(a) (1982). See also FCC v. ITT World Communications, Inc. ("ITT"), ___ U.S. ___, 104 S.Ct. 1936, 1939, 80 L.Ed.2d 480 (1984). Here, of course, there is no final order — indeed, the lack of a final order is the very gravamen of the petitioners' complaint. This lack of finality, however, does not automatically preclude our jurisdiction.
    Section 2342(1) provides that: "The court of appeals has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of —
    (1) all final orders of the Federal Communications Commission made reviewable by section 402(a) of title 47 . . . ."
    Section 402(a) makes reviewable "[a]ny proceeding to enjoin, set aside, annul or suspend any order of the Commission under this Act (except those appealable under subsection (b) of this section) . . . ."
    47 U.S.C. § 402(b) (1982) narrows review jurisdiction over certain agency actions even further. It provides that certain agency proceedings, not at issue in this case, are appealable only in the Court of Appeals for the District of Columbia.
    Although the finality doctrine does limit judicial action, it does not do so in a precise and inflexible way. As the Supreme Court has instructed in *Abbot Laboratories v. Gardner,* 387 U.S. 136, 149-50, 87 S.Ct. 1507, 1515-16, 18 L.Ed.2d 681(1967), a federal court should apply the finality requirement in a "flexible" and "pragmatic" way. *See also PCHRG v. FDA,* 740 F.2d at 30. In PCHRG we found that the finality requirement does not preclude us from reviewing claims of unreasonable agency delay. Id. at 30-32.
    The All Writs Act provides that "the Supreme Court and all courts established by an Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions . . . ." 28 U.S.C. § 1651(a). While it is firmly established that section 1651 does not expand the jurisdiction of a court, see, e.g., 9 J. MOORE, MOORE'S FEDERAL PRACTICE § 110.26 at 282 (2d ed. 1983), it is equally well settled that "the authority of the appellate court is not confined to the issuance of writs in aid of jurisdiction already acquired by appeal but extends to those cases which are within its appellate jurisdiction although no appeal has been perfected.'" *[Federal Trade Commission v. Dean Foods Co.,* 384 U.S. 597, 603-04,](<https://www.casemine.com/judgement/us/59149a7dadd7b04934625beb#p603>) [86 S.Ct. 1738, 1742-43,](<https://www.casemine.com/judgement/us/59149a7dadd7b04934625beb#p1742>) [16 L.Ed.2d 802](<https://www.casemine.com/judgement/us/59149a7dadd7b04934625beb>) (1966) (quoting *[Roche v. Evaporated Milk Association,* 319 U.S. 21, 25,](<https://www.casemine.com/judgement/us/5914a286add7b04934699af5#p25>) [63 S.Ct. 938, 941,](<https://www.casemine.com/judgement/us/5914a286add7b04934699af5#p941>) [87 L.Ed. 1185](<https://www.casemine.com/judgement/us/5914a286add7b04934699af5>) (1943)). This authority extends to support an ultimate power of review, even though it is not immediately and directly involved. *[United States v. United States District Court,* 334 U.S. 258, 263,](<https://www.casemine.com/judgement/us/5914a152add7b04934687232#p263>) [68 S.Ct. 1035, 1037,](<https://www.casemine.com/judgement/us/5914a152add7b04934687232#p1037>) [92 L.Ed. 1351](<https://www.casemine.com/judgement/us/5914a152add7b04934687232>) (1948). In other words, section 1651(a) empowers a federal court to issue writs of mandamus necessary to protect its prospective jurisdiction. *[Dean Foods,* 384 U.S. at 603-04,](<https://www.casemine.com/judgement/us/59149a7dadd7b04934625beb#p603>) [86 S.Ct. at 1742-43](<https://www.casemine.com/judgement/us/59149a7dadd7b04934625beb#p1742>); *[United States District Court,* 334 U.S. at 263,](<https://www.casemine.com/judgement/us/5914a152add7b04934687232#p263>) [68 S.Ct. at 1037](<https://www.casemine.com/judgement/us/5914a152add7b04934687232#p1037>); *[Potomac Electric Power Co. v. ICC ("PEPCO"),* 702 F.2d 1026, 1032](<https://www.casemine.com/judgement/us/59149056add7b04934574dd4#p1032>) (D.C. Cir. 1983); *[Board of Governors v. Transamerica Corp.,* 184 F.2d 311, 315](<https://www.casemine.com/judgement/us/5914cad8add7b049347fdb5f#p315>) (9th Cir.), *cert. denied,* **340 U.S. 883,** **71 S.Ct. 197,** **95 L.Ed. 641** (1950). Because the statutory obligation of a Court of Appeals to review on the merits may be defeated by an agency that fails to resolve disputes, a Circuit Court may resolve claims of unreasonable delay in order to protect its future jurisdiction. *[Environmental Defense Fund, Inc. v. Ruckelshaus,* 439 F.2d 584, 593](<https://www.casemine.com/judgement/us/5914c775add7b049347e2eaa#p593>) (D.C. Cir. 1971); *[see also Dean Foods,* 384 U.S. at 603,](<https://www.casemine.com/judgement/us/59149a7dadd7b04934625beb#p603>) [86 S.Ct. at 1742](<https://www.casemine.com/judgement/us/59149a7dadd7b04934625beb#p1742>) (quoting *[McClellan v. Carland,* 217 U.S. 268, 280,](<https://www.casemine.com/judgement/us/5914a9d0add7b0493471757f#p280>) [30 S.Ct. 501, 504,](<https://www.casemine.com/judgement/us/5914a9d0add7b0493471757f#p504>) [54 L.Ed. 762](<https://www.casemine.com/judgement/us/5914a9d0add7b0493471757f>) (1910) ("[w]e think it the true rule that where a case is within the appellate jurisdiction of a higher court a writ . . . may issue in aid of the appellate jurisdiction which might otherwise be defeated. . . .'").
    The authority of an appellate court to issue mandamus to an agency is analogous to its authority to issue the writ to District Courts. *See, e.g., National Advertisers,* 627 F.2d at 1179 (Leventhal, J., concurring).
    The Supreme Court has long recognized the authority of appellate courts to compel district court action through mandamus. *See, e.g., McClellan v. Carland,* 217 U.S. 268, 30 S.Ct. 501, 54 L.Ed. 762 (1910) (Court of Appeals could issue a writ of mandamus compelling a Circuit Court to proceed where, pending a decision in state court, the Circuit Court had stayed a proceeding before it, possibly preventing the adjudication of the issues in federal court and thus interfering with the Court of Appeal's potential review of the Circuit Court's determinations); Ex Parte Bradstreet, 32 U.S. (7 Pet.) 634, 8 L.Ed. 810 (1833) (ordering lower court judge to reinstate, try, and decide a case to ensure that the party before it could exercise her subsequent right to judgment by the Supreme Court); Ex Parte Crane, 30 U.S. (5 Pet.) 190, 191, 8 L.Ed. 92 (1831) (noting that Blackstone believed the writ of mandamus "`issues to the judges of any inferior court, commanding them to do justice, according to the powers of their office, whenever the same is delayed.'").
    *Cf. PEPCO,* 702 F.2d at 1032-33 (premising appellate jurisdiction over claims of unreasonable agency delay on a slightly different rationale — postponement of an unreasonable delay claim until after the agency's decision may render it moot and deprive the Court of Appeals of the opportunity to review the delay claim, thus permitting present review under the All Writs Act).
    The Administrative Procedure Act ("APA") provides additional support for our jurisdiction here. That Act directs agencies to conclude matters presented to them "within a reasonable time," 5 U.S.C. § 555(b) (1982), and stipulates that the "reviewing court shall . . . compel agency action unlawfully withheld or unreasonably delayed . . . ." 5 U.S.C. § 706(1)(1982). While the APA unquestionably does not confer an independent grant of jurisdiction, *Califano v. Sanders,* 430 U.S. 99, 107, 97 S.Ct. 980, 985, 51 L.Ed.2d 192 (1977), section 706(1) coupled with section 555(b) does indicate a congressional view that agencies should act within reasonable time frames and that court's designated by statute to review agency actions may play an important role in compelling agency action that has been improperly withheld or unreasonably delayed. *See, e.g., Public Citizen Research Group v. Commissioner, Food Drug Administration ("PCHRG v. FDA"),* 740 F.2d 21, 32 (D.C. Cir. 1984).
    B. The Exclusivity of Our Jurisdiction
    We also conclude that our present jurisdiction over claims that affect our future statutory review authority is exclusive. It is well settled that even where Congress has not expressly stated that statutory jurisdiction is "exclusive," as it has here with regard to final FCC actions, a statute which vests jurisdiction in a particular court cuts off original jurisdiction in other courts in all cases covered by that statute. *Compensation Department of District Five, United Mine Workers v. Marshall,* 667 F.2d 336, 340 (3rd Cir. 1981); *Assure Competitive Transportation, Inc. v. United States,* 629 F.2d 467, 471 (7th Cir. 1980), cert. denied, 449 U.S. 1124, 101 S.Ct. 941, 67 L.Ed.2d 110 (1981); *Rochester v. Bond,* 603 F.2d 927, 935 (D.C. Cir. 1979); *Investment Co. Institute v. Board of Governors of the Federal Reserve System,* 551 F.2d 1270, 1278-79 (D.C. Cir. 1977). *See also Whitney National Bank v. Bank of New Orleans Trust Co.,* 379 U.S. 411, 422, 85 S.Ct. 551, 558, 13 L.Ed.2d 386 (1965) (where Congress has enacted a specific statutory scheme of review, the statutory mode must be adhered to notwithstanding the absence of an express statutory command of exclusiveness). By lodging review of agency action in the Court of Appeals, Congress manifested an intent that the appellate court exercise sole jurisdiction over the class of claims covered by the statutory grant of review power. It would be anomalous to hold that this grant of authority only strips the District Court of general federal question jurisdiction under 28 U.S.C. § 1331(1982) when the Circuit Court has present jurisdiction under a special review statute, but not when the Circuit Court has immediate jurisdiction under the All Writs Act in aid of its future statutory review power.
    *See National Advertisers,* 627 F.2d at 1179 (Leventhal, J., concurring). Past suggestions that the District Court has general federal question jurisdiction under 28 U.S.C. § 1331 over some of these claims were in error. *See, e.g., National Advertisers,* 627 F.2d at 1157 (statement that the District Court had jurisdiction over agency bias claim); *PCHRG v. FDA,* 740 F.2d at 34-35 (court tacitly upheld jurisdiction of District Court by remanding for further evidence).
    See supra notes 25-26 and accompanying text.
    See Note, Jurisdiction to Review Federal Administrative Action: District Court or Court of Appeals, 88 HARV.L.REV. 980, 983 (1975) ("[t]he rule of exclusivity is [best] justified as promoting the purposes for which Congress adopts special review statutes.").
    The District Court also lacks jurisdiction under both the All Writs Act, 28 U.S.C. § 1651(a) and the mandamus statute, 28 U.S.C. § 1361 (1982). The All Writs Act is not an independent grant of jurisdiction to a court; it merely permits a court to issue writs in aid of jurisdiction acquired to grant some other form of relief. *See Stern v. South Chester Tube Co.,* 390 U.S. 606, 608, 88 S.Ct. 1332, 1333, 20 L.Ed.2d 177 (1968); *Covington Cincinnati Bridge Co. v. Hager,* 203 U.S. 109, 110, 27 S.Ct. 24, 51 L.Ed. 111 (1906). Because the District Court has no present or future jurisdiction over agency actions assigned by statute to appellate court review, it can contemplate no exercise of jurisdiction that mandamus might aid. The mandamus statute, 28 U.S.C. § 1361 also fails to confer jurisdiction on the District Court to compel agency action. Mandamus is an extraordinary remedy that is not available when review by other means is possible. *See, e.g., Kerr v. United States District Court,* 426 U.S. 394, 403, 96 S.Ct. 2119, 2124, 48 L.Ed.2d 725 (1976); *Council of and for the Blind v. Regan,* 709 F.2d 1521, 1533 (D.C. Cir. 1983); *In re Halkin,* 598 F.2d 176, 198 (D.C. Cir. 1979); *Cartier v. Secretary of State,* 506 F.2d 191, 199 (D.C. Cir. 1974), cert. denied, 421 U.S. 947, 95 S.Ct. 1677, 44 L.Ed.2d 101(1975). Because review is available in the Court of Appeals under the special review statute and the All Writs Act, action by the District Court under section 1361 is not.
    As we said once, in the context of our own jurisdiction under the All Writs Act "[w]e have no appellate jurisdiction over the instant case, past, present, or future, which mandamus could `aid.' Therefore we lack jurisdiction to issue the writ." *In re Stone,* 569 F.2d 156, 157 (D.C. Cir. 1978). The same is true of the District Court in this case.
    Nor is district court review permissible here under section 703 of the APA, which provides for district court review when statutory review is inadequate. Where statutory review is available in the Court of Appeals it will rarely be inadequate. We find untenable any suggestion that appellate review of nonfinal agency action may be inadequate due to Courts of Appeals' inability to take evidence. This precise argument was recently rejected by the Supreme Court in ITT, where the Court held that, if an agency record is insufficient, the Court of Appeals may either remand the record to the agency for further development or appoint a special master under 28 U.S.C. § 2347(b)(3). *ITT,* 104 S.Ct. at 1940.
    That section reads in pertinent part:
    5 U.S.C. § 703 (1982).
    *See, e.g., PCHRG v. FDA,* 740 F.2d at 34-35.
    Although ITT dealt with final agency action and thus is not fully dispositive of the case at hand, we find its reasoning persuasive and follow it here. It would be highly anomalous for us to hold that remand to the agency or appointment of a special master cannot cure evidence deficiencies in the record of ongoing agency proceedings when the Supreme Court has said they are quite adequate for review of the same issues after final agency order.
    Furthermore, there are compelling policy reasons for holding that the jurisdiction of the Court of Appeals is exclusive. Appellate courts develop an expertise concerning the agencies assigned them for review. Exclusive jurisdiction promotes judicial economy and fairness to the litigants by taking advantage of that expertise. In addition, exclusive jurisdiction eliminates duplicative and potentially conflicting review, *Investment Co. Institute,* 551 F.2d at 1279, and the delay and expense incidental thereto.
    There may be a small category of cases in which the underlying claim is not subject to the jurisdiction of the Court of Appeals (and thus adjudication of the claim in the District Court will not affect any future statutory review authority of the Circuit Court). In such cases, where a denial of review in the District Court will truly foreclose all judicial review, district court review might be predicated on the general federal question jurisdiction statute, 28 U.S.C. § 1331. For example, in *Leedom v. Kyne,* 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958), the Supreme Court held that, even though there is a statutory prohibition against review of representation orders of the National Labor Relations Board, a District Court has jurisdiction under section 1331 in the very limited circumstance where the Board has clearly violated an express mandate of the statute and the plaintiff has no alternative means of review. *See Hartz Mountain Corporation v. Dotson,* 727 F.2d 1308, 1311-12 (D.C. Cir. 1984). However, we need not tarry over this narrow exception because it is in no way implicated in the case before us. The principal point of this decision is to make clear that where a statute commits review of agency action to the Court of Appeals, any suit seeking relief that might affect the Circuit Court's future jurisdiction is subject to the exclusive review of the Court of Appeals.
    We recognize that, because the precedent in this circuit may have implied that the District Court has concurrent jurisdiction over claims concerning nonfinal agency action, a number of suits mistakenly may have been filed in the District Court. We assume that, rather than dismiss these suits for want of jurisdiction, the District Court will transfer them to this court under 28 U.S.C. § 1631 (1982). Section 1631 reads:
    III. MERITS OF THE UNREASONABLE DELAY CLAIM
    As we have noted above, there is no doubt that this court has present jurisdiction to hear claims concerning nonfinal agency action (or inaction) that might affect our future statutory review of final agency action. Nevertheless, given the clear legislative preference for review of final action, we must be circumspect in exercising jurisdiction over interlocutory petitions. Postponing review until relevant agency proceedings have been concluded "permits an administrative agency to develop a factual record, to apply its expertise to that record, and to avoid piecemeal appeals." *Association of National Advertisers v. FTC ("National Advertisers"),* 627 F.2d 1151, 1156 (D.C. Cir. 1979) (Tamm, J.) (citing *McKart v. United States,* 395 U.S. 185, 193-94, 89 S.Ct. 1657, 1662-63, 23 L.Ed.2d 194 (1969)), *cert. denied,* 447 U.S. 921, 100 S.Ct. 3011, 65 L.Ed.2d 1113 (1980). Accordingly, we have found the threshold a litigant must pass to obtain judicial review of ongoing agency proceedings to be a high one. Id. As Judge Leventhal emphasized in National Advertisers, "[o]nly in rare instances is a non-final agency action reviewed in the teeth of a general denial of jurisdiction." 627 F.2d at 1178(concurring opinion). Thus, we generally will hear only cases of "`clear right' such as outright violation of a clear statutory provision . . . or violation of basic rights established by a structural flaw, and not requiring in any way a consideration of the interrelated aspects of the merits . . . ." Id. at 1180 (emphasis omitted).
    Although the reasoning in National Advertisers was based on an exhaustion doctrine analysis, it is largely applicable to the finality doctrine.
    Claims of unreasonable agency delay clearly fall into that narrow class of interlocutory appeals from agency action over which we appropriately should exercise our jurisdiction. It is obvious that the benefits of agency expertise and creation of a record will not be realized if the agency never takes action. Agency delay claims also meet Judge Leventhal's suggested criteria for our interlocutory intervention — not only is there an outright violation of 5 U.S.C. § 555(b)'s mandate that agencies decide matters in a reasonable time, there also is no need for the court to consider the merits of the issue before the agency. Finally and most significantly, Congress has instructed statutory review courts to compel agency action that has been unreasonably delayed. 5 U.S.C. § 706(1).
    In Costle v. Pacific Legal Foundation, the Supreme Court noted that judicial review of prolonged agency inaction may be obtained under this section of the APA. 445 U.S. 198, 220 n. 14, 100 S.Ct. 1095, 1108 n. 14, 63 L.Ed.2d 329 (1980).
    In the context of a claim of unreasonable delay, the first stage of judicial inquiry is to consider whether the agency's delay is so egregious as to warrant mandamus. Although this court has decided several cases involving claims of unreasonable delay, *see, e.g., PCHRG v. FDA,* 740 F.2d 21 (D.C. Cir. 1984); *Public Citizen Health Research Group v. Auchter,* 702 F.2d 1150 (D.C. Cir. 1983); *PEPCO,* 702 F.2d 1026 (D.C. Cir. 1983); *MCI Telecommunications Corp. v. FCC ("MCI"),* 627 F.2d 322 (D.C. Cir. 1980); *Nader v. FCC,* 520 F.2d 182 (D.C. Cir. 1975), we have not articulated a single test for when the writ should issue. On reading these cases together, however, one can discern the hexagonal contours of a standard. Although the standard is hardly ironclad, and sometimes suffers from vagueness, it nevertheless provides useful guidance in assessing claims of agency delay: (1) the time agencies take to make decisions must be governed by a "rule of reason," *PEPCO,* 702 F.2d at 1034; *MCI,* 627 F.2d at 340; (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason, *PCHRG v. FDA,* 740 F.2d at 34-35; *PCHRG v. Auchter,* 702 F.2d at 1158, n. 30; *PEPCO,* 702 F.2d at 1034; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; PCHRG v. FDA, 720 F.2d at 34; *PCHRG v. Auchter,* 702 F.2d at 1157; *see also Blankenship v. Secretary of Health, Education, and Welfare,* 587 F.2d 329, 334(6th Cir. 1978); (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority, *see, e.g., PCHRG v. FDA,* 740 F.2d at 34; *PCHRG v. Auchter,* 702 F.2d at 1158; (5) the court should also take into account the nature and extent of the interests prejudiced by delay, *PCHRG v. FDA,* 740 F.2d at 35; and (6) the court need not "find any impropriety lurking behind agency lassitude in order to hold that agency action is `unreasonably delayed.'" *PCHRG v. FDA,* 740 F.2d at 34.
    Because, in the instant case, the FCC has assured us that it is moving expeditiously on both overcharge claims, we need not test the delay here against the above standard to determine if it is egregious enough to warrant mandamus. But in light of the Commission's failure to meet its self-declared prior deadlines for these proceedings, we believe these delays are serious enough for us to retain jurisdiction over this case until final agency disposition.
    In MCI we announced that:
    627 F.2d at 340-41 (footnotes omitted). In that case we found a four year delay to be unreasonable. We observed that unless there was "some limit to the time tariffs unjustified under the law can remain in effect . . . the regulatory scheme Congress has crafted becomes anarchic and whatever tariff rates the `regulated' entity files become, for all practical purposes, the accepted rates." Id. at 325. In the instant case, the FCC has delayed almost five years on the rate of return inquiry and nearly two years on the proper ratemaking treatment of Western Electric's CPE development expenses. These delays have permitted AT T's allegedly excessive returns to "become for all practical purposes, the accepted" ones. Even the agency recognizes, at least with regard to the rate of return delay, that "an unfortunately long time has elapsed since [this] matter first appeared." Whether or not these delays would justify mandamus, we believe they clearly warrant retaining jurisdiction.
    We believe that this statement, although made in the context of review of tariff revisions under 47 U.S.C. § 204 (1982), applies to all aspects of the ratemaking process, including the proceedings at issue here.
    In 1976 the FCC had found AT T's WATS' tariff revisions to be unsupported by the data AT T had produced, but continued the effectiveness of these revisions pending final FCC action. By 1980, when this court heard MCI's complaint of unreasonable delay, the agency still had not completed the proceedings. 627 F.2d at 324-25.
    Brief for FCC 24.
    IV. CONCLUSION
    In accordance with the foregoing opinion, we order that the court's mandate shall issue immediately and that within 30 days from the issuance of this decision the FCC shall inform this court of the dates by which the agency anticipates resolution of both refund disputes. Every 60 days thereafter, the FCC shall advise the court of its progress in these matters. Prior to final agency orders, any party may petition this court to take additional appropriate action as may be warranted.
    On October 12, 1984, the FCC informed this court by letter that it anticipates resolution of the rate of return matter on or before November 30, 1984, and of the treatment of CPE expenses on or before June 28, 1985. See, supra notes 10 21 and accompanying text. In light of the facts before us on this petition and the Commission's explanations, we are not convinced that the latter date is reasonable. We suspect that the agency could easily conclude the CPE proceedings several months earlier, but the evidence currently before us is insufficient to permit a firm determination. This insufficiency should be cured by the agency's reports to this court. If the FCC adheres to the June 28, 1985 deadline, it should explain in its first report (thirty days from the issuance of this opinion) why resolution of this matter requires almost three years to complete (taking as the beginning date November 10, 1982, when the Commission first asked AT T for more information). If the petitioners are unpersuaded by the FCC's explanations, they may request this court to order an earlier resolution.
    We wish to make clear our understanding that the relief we grant here is in no way precluded by the Supreme Court's recent decision in *Heckler v. Day,* ___ U.S. ___, 104 S.Ct. 2249, 81 L.Ed.2d 88 (1984). In Heckler the Court struck down a broad injunction by the United States District Court for the District of Vermont which ordered the Secretary of Health and Human Services to conclude reconsideration of social security disability benefit claims and to issue reconsideration decisions within a specified time period set by the District Court. Based on a review of legislative history, the Court found that Congress had deliberately declined to impose deadlines on this administrative process and that in view of this unmistakable Congressional intent it would be an unwarranted judicial intrusion for federal courts to issue injunctions imposing across-the-board deadlines for future disability claims. Id. 2253, 2258. The Court made clear, however, that it was not prohibiting the proper use of injunctive relief to remedy individual claims. Id. at 2258, n. 33. In the instant proceeding, we adjudicate an individual case and fashion a remedy for the specific instances presented by this case. At this time, all we require is that the FCC fulfill its promise of expeditious treatment of the petitioners' claims and keep this court informed of its progress.

    Tbird
    Know what VA is reading about you. Request your VA claims file (VA C File).   VA Claims File is the infamous C File. We can not stress enough how important it is to View your VA Claims File at the Veterans Affairs regional office (find your Regional VA Office here). Call the VA at 1-800-827-1000 and request an appointment to view your C File (VA Claims File). Ensure that all the records in your VA Claims File or C File are yours. Check that everything you have sent to the VA is included in your VA Claims File. After viewing your VAClaims File (c file) and correcting any mistakes you may find, you should request a hard copy of your C File. If you’re having difficulty obtaining your VA Claims File from your Regional VA Office, you can file a written Freedom of Information Act (FOIA) Request. See below for more information on FOIA requests.
    Read more on Establishing Veterans Affairs Service Connection for Disability Compensation.
    When you apply for disability benefits, the VA creates a claims file. Information you send to the VA records the VA obtains on your behalf, and documents created by the VA are all in this file. The claims file is commonly referred to as the “C File.”
    When you apply for disability benefits, the VA creates a claims file. Information you send to the VA records the VA obtains on your behalf, and documents created by the VA are all in this file. The claims file is commonly referred to as the “C File.”

    Typical Documents in a VA Claims File
    When you receive your VA Claims File, don’t be surprised if the documents are disorganized. Also, there may be several document copies even though you only need one. It can take a while to sort it all out. If you want some help with this, you may want to find a VA disability attorney to assist you.
    Here are some basic documents you might find in your C File if you have applied for VA benefits. This is not an exhaustive list but merely a description of the most common and important documents you should find in your file. If any of these documents are missing, you will want to obtain them. (See Nolo’s article on obtaining VA records for more information about how to do that.)
    DD-214, Report of Separation From Service
    This is a very important document. It includes information about your character of service, which can determine your eligibility for benefits. Your DD-214 will also include your dates of service, specialties, any medals received, and other information about your term(s) of service.
    Application for Benefits
    Any applications for benefits that you have previously made should be included in your C File. This can be important if you do not keep copies before applying.
    Denial Letter, Ratings Decision, and Code Sheet
    If you have been denied benefits, there should be a letter in your file notifying you of the decision to deny you benefits. Until recently, the VA issued detailed rating decisions explaining why benefits were granted or denied and certain ratings were assigned to service-connected disabilities. The rating decisions do not provide much information and tend to be brief.
    There should also be a code sheet accompanying the rating decision. The code sheet contains information about the rating decision, such as the diagnostic code used to assign the disability rating. It also provides information about the effective date of benefits, whether a future reexamination will be required, and additional details about the decision.
    If you hire an attorney, they will ask you for a copy of the denial letter, rating decisions, and code sheet.
    Service Medical Records
    You may find copies of your service medical records in the file if the VA requested these while gathering information to decide your claim. An important document in these records is the report from your enlistment examination. This exam report contains information on whether you suffered from certain medical conditions when you entered service.
    VA FOIA Requests

    Tbird
    Atomic Veterans Commemorative Service Medal

    VA will award a new Atomic Veterans Service Medal to those who participated in nuclear testing, clean-up after accidents, and other such endeavors. Veterans who worked in non-combat nuclear tests now may be eligible for a new medal. At the Department of Defense’s discretion, the “Atomic Veterans Medal” would be given to some of the hundreds of thousands of veterans who worked in non-combat nuclear tests.
    The Department of Veterans Affairs will award a new Atomic Veterans Service Medal to those who participated in nuclear testing, clean-up after accidents, and other such endeavors.
    The Atomic Veterans Service Medal honors veterans exposed to ionizing radiation during their military service. These veterans served in World War II, the Korean War, the Vietnam War, and the Persian Gulf War. Read the Full Story Here
    Source: Task and Purpose

    Tbird
    2024 VA Disability Payment Schedule
    2024 VA Disability Payment Schedule Month Payment Date Day of Week January Feb. 1 Thursday February Mar. 1 Friday March Apr. 1 Monday April May 1 Wednesday May May 31 Friday June July 1 Monday July Aug. 1 Thursday August Aug. 30 Friday September Oct. 1 Tuesday October Nov. 1 Friday November Nov. 29 Friday December Dec. 31 Tuesday

    Tbird
    The “presumption of soundness” means that the Veteran will be considered to have been in good health (the claimed disability did not exist) when they were examined, accepted, and enrolled for service. If a pre-existing medical condition was “aggravated” by service, the VA is responsible for covering that condition.
     
    38 U.S. Code § 1111 - Presumption of sound condition 
    For the purposes of section 1110 of this title, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.
    (Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1119, § 311; renumbered § 1111 and amended Pub. L. 102–83, § 5(a), (c)(1), Aug. 6, 1991, 105 Stat. 406.) Exceptions:  The presumption of soundness does not apply when the evidence shows
    defects, infirmities, or disorders noted at entrance into service (such as conditions noted on the entrance examination) or the injury or disease clearly and unmistakably existed prior to service and was not aggravated by service. Notes: 
    The presumption of soundness applies only when the Veteran underwent a physical examination at the time of entry into service on which the claim is based.  Only the conditions recorded in the enlistment examination report will be considered as noted. A history of pre-service conditions recorded during the entrance examination is not a notation of the condition. It is just one factor that must be considered on the question of presumption of soundness.  The presumption of soundness is also applicable when the Veteran underwent a physical examination upon entrance into service, but the examination report is unavailable. In such a situation, the presumption of soundness will stand. Once the presumption of soundness arises, it is only overcome when the record contains clear and unmistakable evidence showing that the disease or injury existed before service and was not aggravated by service. A defect, infirmity, or disorder noted on the enlistment examination must meet established criteria and/or definitions of disability to overcome the presumption of soundness. For example, audiometric data documenting the existence of abnormal hearing but not to the extent satisfactory to meet the definition of hearing loss for VA purposes as specified in 38 CFR 3.385 would not overcome the presumption of soundness. To establish that there was a hearing loss existent at enlistment, the audiometric data must document hearing loss for VA purposes as defined in 38 CFR 3.385. Reference:  For more information on the presumption of soundness and aggravation, see:
    M21-1, Part V, Subpart ii, 2. C 38 CFR 3.304(b) 38 U.S.C. 1111 VAOPGCPREC 3-2003 Wagner v. Principi, 370 F.3d 1089, 1096 (Fed.Cir. 2004) Horn v. Shinseki, 25 Vet.App. 231 (2012) Gilbert v. Shinseki, 26 Vet.App. 48 (2012), and McKinney v. McDonald, 28 Vet.App. 15 (2016).   Use the table below to determine the service requirements the Veteran must meet before the VA can apply the presumption of soundness. If the Veteran served during … Then the Veteran must … peacetime before January 1, 1947 have had active continuous service of six months or more, per 38 CFR 3.305(b). peacetime on or after January 1, 1947, or wartime meet no minimum service requirements per 38 CFR 3.304(b).
    Under 38 USC 1111, when no pre-existing condition is noted at entrance into service, then the presumption of soundness establishes that the claimed disability did not exist before service unless there is clear and unmistakable (undebatable) evidence showing that the disease or injury that manifested in service.   existed prior to service and was not aggravated by service. Notes:  Personality disorders are not considered diseases or injuries under 38 USC 1110; therefore, the presumption of soundness under 38 USC 1111 pertaining to personality disorders does not apply. The presumption of soundness still requires evidence of a nexus between a current disability and the in-service disease or injury. 

    Tbird
    COLA 2023 8.7% Announced Oct 13, 2023, the highest since 1981. Lately, there’s lots of chatter about the COLA for next year being the biggest since 1980 when it was 14.3 or 1981 when we received 11.2. Anything in the double digits would be huge for us. It would be a first for me. My VA disability started, in 1991 and my SSDI didn’t start until 1998 I think.
    Since 1982, there hasn’t been a cost-of-living adjustment (COLA) above 10%. The last time it happened was, in 1982 when the COLA increased by 11.2%.
    What is scary is several sources say Americans will stop receiving their full Social Security benefits in 2035 if lawmakers don’t act.
    Opinions on what the 2023 COLA are varied:
    Yahoo/Finance The Wednesday Consumer Price Index report showed that June’s inflation surged by 9.1%. According to the Senior Citizens League, the COLA (cost-of-living adjustment) 2023 will be approximately 10.5%. This is great news for seniors struggling to keep up with the rising living costs.
    Fool.com According to Mary Johnson, a Social Security policy analyst at The Senior Citizens League (TSCL), a nonpartisan senior advocacy group, the program’s COLA could be as high as 11.4% in 2023 if inflation continues to surge in the third quarter.
    Here is a link to Google Search for COLA 2023 so you can keep track of the news on the 2023 COLA as we get closer to its announcement in October 2023.
    A bit of background from the SSA.gov site
    History of Automatic Cost-Of-Living Adjustments (COLA)
    The COLA is designed to keep your Social Security and Supplemental Security Income (SSI) benefits from losing value to inflation. It’s based on the percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) from the third quarter of the last year, and a COLA was determined for the current year's third quarter. If there’s no increase, there can be no COLA.
    The Bureau of Labor Statistics in the Department of Labor determines the CPI-W. By law, it is the official measure the Social Security Administration uses to calculate COLAs.
    1972, Congress enacted Social Security Amendments, and automatic annual COLAs began in 1975. Before that, benefits were increased only when Congress enacted special legislation.
    Beginning in 1975, Social Security started automatic annual cost-of-living allowances. The change was enacted by legislation that ties COLAs to the annual Consumer Price Index (CPI-W) increase.
    The change means that inflation no longer drains value from Social Security benefits.
    The 2022 COLA The 2021 COLA The 2020 COLA The 2019 COLA The 2018 COLA The 2017 COLA The 2016 COLA The 1975-82 COLAs were effective with Social Security benefits payable for June (received by beneficiaries in July) each year. After 1982, COLAs have been effective with benefits payable for December (received by beneficiaries in January).
    Automatic Cost-Of-Living Adjustments received since 1975
    July 1975 — 8.0% July 1976 — 6.4% July 1977 — 5.9% July 1978 — 6.5% July 1979 — 9.9% July 1980 — 14.3% July 1981 — 11.2% July 1982 — 7.4% January 1984 — 3.5% January 1985 — 3.5% January 1986 — 3.1% January 1987 — 1.3% January 1988 — 4.2% January 1989 — 4.0% January 1990 — 4.7% January 1991 — 5.4% January 1992 — 3.7% January 1993 — 3.0% January 1994 — 2.6% January 1995 — 2.8% January 1996 — 2.6% January 1997 — 2.9% January 1998 — 2.1% January 1999 — 1.3% January 2000 — 2.5% (1) January 2001 — 3.5% January 2002 — 2.6% January 2003 — 1.4% January 2004 — 2.1% January 2005 — 2.7% January 2006 — 4.1% January 2007 — 3.3% January 2008 — 2.3% January 2009 — 5.8% January 2010 — 0.0% January 2011 — 0.0% January 2012 — 3.6% January 2013 — 1.7% January 2014 — 1.5% January 2015 — 1.7% January 2016 — 0.0% January 2017 — 0.3% January 2018 — 2.0% January 2019 — 2.8% January 2020 — 1.6% January 2021 — 1.3% January 2022 — 5.9% (1) The COLA for December 1999 was originally determined as 2.4 percent based on CPIs published by the Bureau of Labor Statistics. According to Public Law 106-554, this COLA is now 2.5 percent.

    Tbird
    Two of the most common legal theories to argue for an Earlier Effective Date in a VA Disability Compensation Claim. Author Chris Attig Veterans Law Blog Earlier Effective Date: Your VA Claim – When You Should Argue!
      While there are two legal processes to pursue an earlier effective date, several legal theories can be used in those processes. Here are 2 of the most common legal theories to argue for an Earlier Effective Date in a VA Disability Compensation Claim.   Here are 2 of the most common legal theories to argue for an Earlier Effective Date in a VA Disability Compensation Claim.
    Reopen your claim and prove service connection based on military service records or service medical treatment records.   This is one that the VA hates. Here’s how it works…   You, the VA, or any third party discovers service records or medical records not previously included in the VA C-File.  38 CFR 3.156(c) requires that the VA reconsider any previously denied claim to which those records might apply.   If those records lead to a grant of service connection for a previously denied claim (even if finally adjudicated), then 38 CFR 3.156(c)(2) contains the following requirement: An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date Veterans Affairs received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. The VA hates 38CFR3.156(c). In fact, they commonly “overlook” this basis for an earlier effective date when Veterans find new military service records or military treatment service records.   Show that the VA should have granted an earlier claim date based on the “implicit denial” doctrine. The VA doesn’t have to go digging through your C-file to find every viable claim. However, if a claim is “reasonably raised” by the record, then the VA’s failure to address it could be considered an “implicit denial” of that claim. Here’s how that might work: A Vietnam-era Veteran who served at NKP in Thailand files a claim for service-connection due to Agent Orange exposure. He tells the VA that he has  Diabetes Mellitus Type II. To confirm the diagnosis of Diabetes, the VA receives medical records from the Veteran’s treating physician. The treating physician’s records are replete with diagnoses of ischemic heart disease. However, in the rating decision, the VA fails to address the ischemic heart disease, even while granting Service-Connection for the Diabetes based on Agent Orange Exposure.   A claim like this might be “reasonably raised” by the record. In fact, this scenario occurs very frequently. While granting one claim, the VA turns a blind eye to a fairly obvious claim in the record that the Veteran may or may not have specifically asked for. Most commonly, this occurs with secondary conditions – conditions that the medical record clearly indicates are caused by the service-connected condition. This happens because the bureaucrats deciding VA claims have little or no medical knowledge or training and are punished for thinking outside the box.   The BVA and the CAVC are going to look at a couple of factors in analyzing the implicit denial doctrine:  relatedness of the claims, the timing of the claims, whether the rating decision (or other adjudication of the Veterans Benefits claim) refers to the condition in a way that suggests it was denied, and whether the Veteran was represented or acting pro-se.   Remember, there are only two paths to an Earlier Effective Date – a CUE claim (or a Motion to Revise the Effective Date based on Clear and Unmistakeable Error) and as a legal basis in a current and pending appeal.   Author Chris Attig Veterans Law Blog  

    Tbird
    How Do I File A VA Disability Claim from VA.gov
    Find out if you’re eligible for VA disability compensation. Learn about eligibility Be sure to fill out your claim completely.  Gather any evidence (supporting documents) you’ll submit yourself when you file your VA disability claim. We encourage you to send in all your supporting documents and your claim. This will help us process your claim quickly. Learn about fully developed claims. Find out if you must turn in any additional forms with your claim. Learn about additional forms you may need to file. To learn more about filing a disability claim, you can play our disability claims video.
    Go to our disability claims video on YouTube.
    What evidence do I need to support my claim?
    You can support your VA disability claim by providing these documents:
    VA medical records and hospital records. These could relate to your claimed illnesses or injuries, or they could show that your disability rating has gotten worse. Private medical records and hospital reports. These could relate to your claimed illnesses or injuries, or they could show that your disability has gotten worse. Supporting statements. These could be from family members, friends, clergy members, law enforcement personnel, or people you served with. These statements could tell us more about your claimed condition and how and when it happened or how it got worse. Depending on the type of claim you file, you may gather supporting documents yourself or ask for our help to gather evidence.
    Learn more about the evidence we’ll need for your claim
    We’ll also review your discharge papers (DD214 or other separation documents) and service treatment records.
    Do I have to submit evidence with my claim?
    No. You don’t have to submit any evidence to support your claim. However, we may need to schedule a claim exam to learn more about your condition.
    Learn more about VA claim exams (C&P exams)
    You should also know that you have up to a year from the date we receive your claim to turn in any evidence. Start your application and need time to gather more supporting documents. You can save your application and come back later to finish it. We’ll recognize the date you started your application as your date of claim if you complete it within 365 days.
    How do I file a compensation claim?
    You can file a claim online now.
    File for disability compensation online
    You can also file for disability compensation in any of these 4 ways.
    By mail
    File your claim by mail using an Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ).
    Get VA Form 21-526EZ to download
    Print the form, fill it out, and send it to this address:
    Department of Veterans Affairs
    Claims Intake Center
    PO Box 4444
    Janesville, WI 53547-4444
    In-person
    Bring your application to a VA regional office near you.
    Find a VA regional office near you.
    By fax
    If you’re in the U.S., fax your application to 844-531-7818.
    If you’re outside the U.S., fax your application to 248-524-4260.
    With the help of a trained professional
    You can work with a trained professional called an accredited representative to get help filing a claim for disability compensation.
    Get help from an accredited representative.
    Should I submit an intent to file form?
    Suppose you plan to file for disability compensation using a paper form. In that case, you should submit an intent to file form first. This can give you the time to gather your evidence while avoiding a later potential start date (also called an effective date). When you notify us of your intent to file, you may be able to get retroactive payments (compensation that starts at a point in the past).
    Note: If you file for disability compensation online, you don’t need to notify us of your intent to file. Your effective date is set automatically when you start filling out the form online—before you submit it.
    Find out how to submit an intent to file form.           
    What happens after I file my VA disability claim?
    Find out what happens after you file.
    You don’t need to do anything while waiting unless we send you a letter asking for more information. If we schedule exams for you, be sure not to miss them.
    Check your VA claim status.
    How long does it take the VA to make a decision?
    159.2 days
    Average number of days to complete disability-related claims in March 2024

    Tbird
    VA History From VA's website
     
    The United States has a deep history and legacy of having the most comprehensive system of assistance for Veterans of any nation in the world, with roots that can be traced back to 1636, when the Pilgrims of Plymouth Colony were at war with the Pequot Indians. The Pilgrims passed a law that stated that the colony would support disabled soldiers.
    Later, the Continental Congress of 1776 encouraged enlistments during the Revolutionary War, providing pensions to disabled soldiers. In the Republic's early days, individual states and communities provided veterans with direct medical and hospital care. In 1811, the federal government authorized the first domiciliary and medical facility for Veterans. Also, in the 19th century, the nation’s Veterans assistance program was expanded to include benefits and pensions for Veterans and their widows and dependents.
     
    Following the Civil War, many state Veterans homes were established. Since domiciliary care was available at all state Veterans homes, incidental medical and hospital treatment was provided for all injuries and diseases, regardless of service origin. Indigent and disabled Veterans of the Civil War, Indian Wars, Spanish-American War, and Mexican Border period, as well as the discharged regular members of the Armed Forces, received care at these homes.
    As the U.S. entered World War I in 1917, Congress established a new system of Veterans benefits, including programs for disability compensation, insurance for service personnel and Veterans, and vocational rehabilitation for the disabled. By the 1920s, three different federal agencies administered the various benefits: the Veterans Bureau, the Bureau of Pensions of the Interior Department, and the National Home for Disabled Volunteer Soldiers.
    The first consolidation of federal Veterans programs occurred on August 9, 1921, when Congress combined all World War I Veterans programs to create the Veterans Bureau. Public Health Service Veterans’ hospitals were transferred to the bureau, and an ambitious hospital construction program for World War I Veterans commenced.
    World War I was the first fully mechanized war, and as a result, soldiers who were exposed to mustard gas and other chemicals and fumes required specialized care after the war. Tuberculosis and neuro-psychiatric hospitals opened to accommodate Veterans with respiratory or mental health problems. Most existing VA hospitals and medical centers began as National Home, Public Health Service, or Veterans Bureau hospitals. In 1924, Veterans benefits were liberalized to cover disabilities that were not service-related. In 1928, admission to the National Homes was extended to women, National Guard, and militia Veterans.
    The second consolidation of federal Veterans programs took place July 21, 1930, when President Herbert Hoover signed Executive Order 5398 and elevated the Veterans Bureau to a federal administration—creating the Veterans Administration—to “consolidate and coordinate Government activities affecting war veterans.” At that time, the National Homes and Pension Bureau joined the VA.
    The three component agencies became bureaus within the Veterans Administration. Brig. Gen. Frank T. Hines, who had directed the Veterans Bureau for seven years, was named the first Administrator of Veterans Affairs, a job he held until 1945.
    Dr. Charles Griffith, VA’s second Medical Director, came from the Public Health Service and Veterans Bureau. Both he and Hines were the longest-serving executives in VA’s history.
    Following World War II, there was a vast increase in the Veteran population, and Congress enacted large numbers of new benefits for war Veterans—the most significant of which was the World War II GI Bill, signed into law on June 22, 1944. It is said the GI Bill impacted the American way of life more than any law since the Homestead Act of 1862.
    The GI Bill placed the VA second in funding and personnel priorities for the War and Navy Departments. Modernizing the VA for a new generation of Veterans was crucial, and replacing the “Old Guard” World War I leadership became necessary.
    GI Bill History
    The VA Home Loan Guaranty Program is the only provision of the original GI Bill that is still in force. Between the end of World War II and 1966, one-fifth of all single-family residences built were financed by the GI Bill for either World War II or Korean War Veterans. From 1944 through December 1993, VA guaranteed 13.9 million home loans valued at more than $433.1 billion.
    Eligible loan guaranty users can now negotiate loan terms, including the interest rate, which helps VA loan participants compete better in the housing market. The loan guaranty program no longer has a terminating date and can be used by any Veteran who served after Sept. 16, 1940, as well as men and women on active duty, surviving spouses, and reservists.
    To assist the Veteran between discharge and reemployment, the 1944 GI Bill also provided unemployment benefits of $20 per week, for a maximum of 52 weeks. It was a lesser amount than the unemployment benefits available to non-veterans. This assistance avoided a repetition of the World War I demobilization when unemployed Veterans were reduced to relying on charities for food and shelter.
    Critics dubbed the benefit the “52-20 Club” and predicted most Veterans would avoid jobs for the 52 weeks that the checks were available.
    However, only a portion of veterans were paid the maximum amount available. Less than one-fifth of the potential benefits were claimed, and only one out of 19 Veterans exhausted the full 52 weeks of checks.
    In 1945, General Omar Bradley took the reins at VA and steered its transformation into a modern organization.
    In 1946, Public Law 293 established the Department of Medicine and Surgery within the VA and numerous other programs like the VA Voluntary Service. The law enabled the VA to recruit and retain top medical personnel by modifying the civil service system. When Bradley left in 1948, there were 125 VA hospitals.
    President Ronald Reagan elevated The VA to a cabinet-level executive department in October 1988. The change took effect on March 15, 1989, and administrative changes occurred at all levels. President George H. W. Bush hailed the creation of the new Department, saying, “There is only one place for the Veterans of America, in the Cabinet Room, at the table with the President of the United States of America.” The Veterans Administration was then renamed the Department of Veterans Affairs and continued to be known as VA.
    VA’s Department of Medicine and Surgery, established in 1946, was re-designated as the Veterans Health Services and Research Administration at that time. However, on May 7, 1991, the name was changed to the Veterans Health Administration (VHA).
    Veterans Health Administration (VHA) History
    VHA evolved from the first federal soldiers’ facility established for Civil War Veterans of the Union Army. On March 3, 1865—a month before the Civil War ended and the day before his second inauguration—President Abraham Lincoln signed a law to establish a national soldiers and sailors asylum. Renamed the National Home for Disabled Volunteer Soldiers in 1873, it was the first-ever government institution created specifically for honorably discharged volunteer soldiers. The first national home opened on November 1, 1866, near Augusta, Maine. The national homes were often called “soldiers’ homes” or “military homes,” and only soldiers who fought for the Union Army—including U.S. Colored Troops—were eligible for admittance. These sprawling campuses became the template for succeeding generations of federal Veterans’ hospitals.
    By 1929, the federal system of national homes had grown to 11 institutions that spanned the country and accepted Veterans of all American wars.
    However, it was World War I that brought about the establishment of the second-largest system of Veterans’ hospitals. In 1918, Congress tasked two Treasury agencies – the Bureau of War Risk Insurance and Public Health Service – with operating hospitals specifically for returning World War I Veterans. They leased hundreds of private hospitals and hotels for the rush of returning injured war veterans and began a program to build new hospitals.
    Today’s VHA – the largest of the three administrations that comprise the VA – continues to meet Veterans’ changing medical, surgical, and quality-of-life needs. New programs provide treatment for traumatic brain injuries, post-traumatic stress, suicide prevention, women Veterans, homeless Veterans, and more. VA has opened outpatient clinics, established telemedicine, and provided other services to accommodate a diverse veteran population. It continues to cultivate ongoing medical research and innovation to improve the lives of America’s patriots.
    VHA operates one of the largest healthcare systems in the world and provides training for most of America’s medical, nursing, and allied health professionals. Roughly 60 percent of all medical residents obtain a portion of their training at VA hospitals, and VA medical research programs benefit society at large.
    The VA healthcare system has grown from 54 hospitals in 1930 to 1,600 healthcare facilities today, including 144 VA Medical Centers and 1,232 outpatient sites of care of varying complexity.
    Veteran Benefits Administration (VBA) History
    The origins of the Veterans Benefits Administration (VBA) date back to the country’s earliest days. During the American Revolution, the Continental Congress passed the first national pension laws for wounded or injured soldiers, leaving it to the states to distribute relief. After 1789, the federal government assumed responsibility for the pension system. In the early 1800s, a small office of three in the War Department handled the clerical work relating to claims and the few thousand Veterans on the pension rolls. As the number of beneficiaries increased over the decades, so did the size of the workforce.
    By the mid-1830s, the Bureau of Pensions, as the office came to be called, employed a staff of 18 dispensing $2-3 million in payments annually to some 40,000 Veterans, widows, and dependent children. Clerks in the Washington, D.C. office reported to the Commissioner of Pensions, a presidentially appointed position created by Congress in 1833. Another Congressional Act in 1849 transferred the Pension Bureau to the newly created Department of the Interior, which would remain until 1930.
    The pension system grew dramatically after the Civil War. For the first time, the federal government regarded diseases contracted during military service as grounds for claiming disability. From 1863 to 1888, the Pension Bureau received on average 40,000 applications annually from Union Veterans or their survivors. An 1890 law expanded eligibility further by granting pensions to any Union Veteran too infirm to work. Pension numbers more than tripled within a decade, from 303,000 in 1883 to 966,000 in 1893.
    Spending on pensions also soared and routinely consumed more than 30 percent of the federal budget in the 1890s. (These payments only ceased when the last Civil War beneficiary, the daughter of a Union soldier, died in 2020 at age 90). By this time, the bureau had grown so large that Congress funded the constructing a new building to house the 2,000 men and women working in the capital. The massive Italian Renaissance Revival-style structure occupied a full city block and would serve as the Pension Bureau’s headquarters from 1885 to 1926. In addition to the Washington, D.C. workforce, the bureau employed another 400 persons at 18 pension agencies in cities across the country.
    During World War I, the federal government introduced two new types of Veterans benefits: insurance and vocational training for the disabled. These programs were first handled by separate organizations until Congress in 1921 centralized their management in the Veterans Bureau. Meanwhile, the Bureau of Pensions continued administering the pension system for Veterans of previous wars. In 1930, Congress decided to consolidate all Veterans benefits and services in a single federal agency, the Veterans Administration.
    The Veterans Administration faced unprecedented challenges after World War II. Millions of returning Service members sought to collect on the benefits they were eligible for, including the education and loan assistance offered by the 1944 GI Bill. The volume of business was staggering. In the first five months following the war, VA processed 1.5 million disability claims alone. By the time the provisions of the WWII GI Bill had expired, the agency had helped more than 12 million Veterans advance their education or secure low-interest home loans.
    To increase efficiency and better manage its workload, the VA carried out an internal reorganization in 1953 that led to establishing the Department of Veterans Benefits, the direct forerunner of the Veterans Benefits Administration. The department was responsible for overseeing all types of benefits except for insurance. In 1989, the restructuring that accompanied the Department of Veterans Affairs creation united insurance with the other major benefit programs managed by VBA.
    From its humble beginnings in the Revolutionary era, the Veterans Benefits Administration has grown into a dynamic organization employing more than 24,000 people in its Washington, D.C. headquarters office, and at 56 regional offices. VBA now distributes almost $135 billion in benefits and services annually to nearly 6 million Veterans and their family members.
    VBA also continues to evolve. In the last decade, it has made great strides in digitizing records, automating processes, and implementing other modernization initiatives to improve delivery of benefits to the Veteran community.
    The National Cemetery Administration (NCA) is one of three federal agencies responsible for managing national cemeteries in the United States. Its mission includes the oversight of most national cemeteries and the provision of grave markers for qualified Veterans. The origin of all national cemeteries begins with the Civil War (1861-1865) and President Abraham Lincoln.
    In the war’s second year, on July 17, 1862, Congress enacted legislation that authorized Lincoln “to purchase cemetery grounds…to be used as a national cemetery for the soldiers who shall die in the service of the country.” After the war, the National Cemetery Act of February 22, 1867, was the first law to finance and develop national cemeteries through the acquisition of land, buildings, walls, and permanent upright marble headstones.
    When the Union dead reburial program concluded in 1871, the Army reported that 300,000 remains were reinterred in 73 national cemeteries or in soldiers’ lots located within private cemeteries. This was the first time a country gathered its dead in Veterans’ cemeteries created to honor their service. While burials in the first national cemeteries were only for Veterans who died in the Civil War, burial criteria have expanded dramatically in the areas of family eligibility and military service over the years.
    The 1930s saw major changes associated with national cemeteries. Established in 1930, VA assumed responsibility for the National Homes for Disabled Volunteer Soldiers, whose burial grounds would become national cemeteries. Flat grave markers were introduced. Seven new cemeteries were built between 1934 and 1939 in major cities based on Veteran demographics. The Army transferred 14 Civil War national cemeteries to what is now the National Park Service.
    The National Cemeteries Act of 1973 (PL 93-43) was enacted on June 18, 1973, transferring stewardship of the 112-year-old National Cemetery System from the Army to VA: 82 national cemeteries and 33 soldiers lots. The Army retained Arlington National Cemetery and Soldiers’ & Sailor’s Home National Cemetery. Concurrently, VA re-designated its 21 burial grounds to create a network of 103 national cemeteries. The act also transferred responsibility for providing government-issued Veteran headstones/markers to the VA.
    VA began opening new national cemeteries in the 1970s. In 1978, the Veterans Cemetery Grants Program was established to assist states, territories and federally recognized tribal governments provide gravesites where VA cemeteries are not located.
    On November 11, 1998, the Veterans Programs Enhancement Act of 1998 renamed the National Cemetery System as the National Cemetery Administration, and the NCA principal was elevated from Director to Under Secretary of Veterans Affairs for Memorial Affairs.
    NCA opened 17 new cemeteries between 1997 and 2010 and has continued introducing memorial products to honor Veterans’ service. VA provides a headstone/marker/medallion, U.S. flag, and Presidential Memorial Certificate. About 15 percent of all eligible servicemembers are interred in a VA national cemetery; about 5 percent opt for a State, Territorial or Tribal Veterans Cemetery.
    The NCA system comprises more than 150 national cemeteries and soldiers’ lots, and it is the only federal agency developing new Veteran cemeteries. These memorial landscapes convey meaningful stories about the diversity of American history – patriotic and partisan service, racial and gender equality, religious beliefs, and ranks from private to fleet admiral. VA cemeteries contain more than 400 Medal of Honor recipients and approximately 1,370 memorial monuments. Nearly 4.9 million individuals, including Veterans of every conflict from the Revolutionary War to the Global War on Terror, are honored by burial in VA national cemeteries.
     

    Tbird
    A collection of stories describing the history of America’s most beloved customs and national symbols. From the Pledge of Allegiance to folding the flag...
    As the nation braced for the Civil War’s final throes, thousands of spectators gathered on a muddy Pennsylvania Avenue near the U.S. Capitol to hear President Lincoln’s second inaugural address. It was March 4, 1865, a time of great uneasiness. The war would end in just over one month, and the president would be assassinated.
    President Lincoln framed his speech on the moral and religious implications of the war, rhetorically questioning how a just God could unleash such a terrible war upon the nation. “If we shall suppose that American slavery is one of those offenses in the providence of God, … and that He gives to both North and South this terrible war as the woe due to those by whom the offenses came.”
     
     
    With its deep philosophical insights, critics have hailed the speech as one of Lincoln’s best.
    As the speech progressed, President Lincoln turned from the divisive bitterness at the war’s roots to the unifying task of reconciliation and reconstruction. The president delivered his prescription for the nation’s recovery in the speech’s final paragraph.
    With the words, “To care for him who shall have borne the battle and for his widow, and his orphan,” President Lincoln affirmed the government’s obligation to care for those injured during the war and to provide for the families of those who perished on the battlefield.
    Today, a pair of metal plaques bearing those words flank the entrance to the Washington, D.C. headquarters of the Department of Veterans Affairs (VA). VA is the federal agency responsible for serving the needs of veterans by providing health care, disability compensation and rehabilitation, education assistance, home loans, burial in a national cemetery, and other benefits and services.
    Lincoln’s immortal words became the VA motto in 1959, when the plaques were installed, and can be traced to Sumner G. Whittier, administrator of what was then called the Veterans Administration. A document on VA medical history prepared for the Congressional Committee on Veterans Affairs titled, “To care for him who shall have borne the battle,” details how the words became VA’s motto. “He (Whittier) worked no employee longer or harder than himself to make his personal credo the mission of the agency. What was that credo? Simply the words of Abraham Lincoln, to care for him who shall have borne the battle and for his widow and his orphan. To indicate the mission of his agency’s employees, Mr. Whittier had plaques installed on either side of the main entrance.”
    President Lincoln’s words have stood the test of time and stand today as a solemn reminder of the VA’s commitment to care for those injured in our nation’s defense and the families of those killed in its service.
    Click on the image below to download the complete PDF

    celebrating-americas-freedoms.pdf

    Tbird
    Why is LHI Doing My VA C and P Exam?
    The vast majority of veterans who file a claim for veterans disability benefits will need to attend a VA Compensation and Pension Exam. The C&P examination can be done at the VA or sometimes by a contractor like LHI.
    The VA examiner will perform your exam based on VA’s criteria currently they follow the DBQ’s Disability Benefits Questionnaires.
    You file a claim for disability benefits and you get the letter for your Compensation and Pension Exam and it says it’s being done by LHI. It is nothing to worry about. LHI is a contractor VA uses for exams. They have been working with the VA for over eight years as of 2022.
    The Compensation and Pension Exam you receive from LHI is the same as the one you would receive at the VA. They use the DBQ’s Disability Benefits Questionnaires.
    Compensation and Exams are anxiety-producing for many veterans, seeing a strange set of letters like LHI can make the anxiety worse. No need for excessive anxiety.
    Here is a post from our Community discussing this topic, I hope you find it helpful.
    LHI? Has anyone had any experiences previously?
    “I was contacted and sent to LHI for a rating increase on PTSD. I was on edge just because going to an unknown contractor bothered me a bit. But as I read on here they listed the doctors' names and credentials which I used to investigate the doctor and liked what I found. I showed up to the appointment and expected the appointment to last at least half as long as the paperwork called for which was about an hour and a half.
    The appointment was at 0800 hours, and I was back out the door and in my car by 0825. Now to the nitty gritty. It was not bad at all. The doctor had reviewed all of my stressors before my coming in and we did not speak of them at all not even in passing.
    What I would have given to know that he had no interest the previous three days would’ve kept me from crawling the walls and being even more anxious than normal. 
    Primarily, it was spent doing a down-and-dirty DBQ where he asked about changes and I presented my notebook and letters from family and the one friend I have left. Before I knew it we were at the end and had in my opinion not really delved in deep as I had expected or experienced in my initial PTSD assessment.
    I knew it would be somewhat shorter but it was short enough that I was thrown off and even told him “It is in my best interest to go into as much detail as I can with my notes” and I was quickly told that it was unnecessary.
    This alarmed me and the whole time I wondered if this wasn’t some Hatchet job and now was convinced that we had a problem. But he reassured me that if I needed to go ahead and talk about the symptoms more then by all means go for it.
    I know that I must’ve had the strangest look on my face maybe even the slightest bit of a homicidal maniac….All I kept thinking was something was wrong….wrong wrong and more wrong. BOHICA BOHICA oh no here it comes. It's been barely 20 mins how could this be so quick? We are going up 100% from 70%. It is quite a bump and change in status…..
    He told me that for what it was worth he was approving or submitting the paper for the increase. He also said he was not sure why I did not have it from the first C&P, but we all know why don’t we? Now I figure he could have lied and might have but I don’t see the upside really…not that it's not possible….either way…
    Now that means nothing and I won't believe that or anything else until I see it when I check my blue button records or a brown envelope shows up in my mailbox.
    But what if….Could I finally be done fighting them and maybe get my 100%? I mean, one little NOD and three years later another C&P could I be so lucky not to have to play whack a mole all the way up to DC? Maybe just maybe….
    When I was leaving I ran into the guy who was waiting alongside me for an 8:00 appointment and he said ” This is a new one on me” I agreed, and he was thereafter submitted a NEW PTSD claim down the FDC (fully developed claim) route 3 weeks ago…..Three weeks ago he submitted his stuff and was there the same day as me doing a C&P maybe things are picking up speed finally…maybe” Read Full Thread.
    And then success …
    “Strangely it must have gone well as I was checking vets and ebennies and found my appeal had been granted for an increase ptsd rating and award of TDIU as well…”
    Read the full thread: LHI? Has anyone had any experiences previously?

    Tbird
    Summary: This document analyzes the interpretation of "substantially gainful employment" within VA regulations. It highlights the need for a clear definition, the role of the Court in interpreting regulations, and the inconsistencies in the VA's interpretation. The document argues that the VA's current interpretation is inconsistent and absurd, as it fails to consider essential factors outlined in the regulations.
    USCAVC NO. 17-0781 RAY v. WILKIE (PDF)
    UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
    No. 17-0781
    Eddie D. Ray, Appellant,
    V.
    Robert L. Wilkie,
    Secretary of Veterans Affairs, Appellee.
    On Appeal from the Board of Veterans' Appeals
    (Argued September 5, 2018                                                                       Decided March 14, 2019)
    Barbara J. Cook, with whom April Donahower, was on the brief both of Providence, Rhode Island, for the appellant.
    Amanda Radke, with whom Angela-Marie C. Green, Appellate Attorney; James M. Byrne, General Counsel; Mary Ann Flynn, Chief Counsel; and Edward V. Cassidy, Jr., Deputy Chief Counsel, all of Washington, D.C., were on the brief for the appellee.
    Before SCHOELEN, ALLEN, and TOTH, Judges.
    ALLEN, Judge, filed the opinion of the Court. TOTH, Judge, filed an opinion concurring in part and concurring in the judgment.
    ALLEN, Judge: In July 2014, the Board of Veterans' Appeals (Board) referred U.S. Army veteran Eddie D. Ray's claim for a rating of total disability on the basis of individual unemployability (TDIU) to what is today the Director, Compensation Service, for extraschedular consideration. The Board found that "[w]hile [an October 2011] VA examiner indicated that the Veteran was able to perform sedentary employment, the record suggests that the Veteran may not be able to obtain such employment as it is inconsistent with his education and occupational background."1 The Director then denied the veteran an extraschedular TDIU rating, and the matter returned to the Board.2 Though in July 2014 the Board found extraschedular referral warranted and though no new evidence had been submitted since its July 2014 decision, in a February 15, 2017, decision, the Board found that the veteran's "service-connected disabilities do not render
    1 Record (R.) at 1478.
    2 R. at 45.
    him unable to secure and follow a substantially gainful occupation consistent with his education and special training" and denied him an extraschedular TDIU rating.3 Nowhere in its decision did the Board explain what it understood the phrase "unable to secure and follow a substantially gainful occupation,"4 a phrase that VA has refused to define since this Court's inception, to mean. Nor did the Board explain why referral for extraschedular consideration was warranted in July 2014 but an extraschedular rating wasn't warranted in February 2017.
    We are called on to answer two questions in this appeal, which is timely and over which the Court has jurisdiction.5 First, what is the effect, if any, of the Board's determination to refer a case for extraschedular consideration under 38 C.F.R. § 4.16(b) when the Board later reviews the Director's decision not to award an extraschedular TDIU rating? Second, does VA's refusal to define key terms in § 4.16(b) make the Board's statement of reasons or bases inadequate, and if so, should the Court interpret those terms itself?
    First, we hold that the Board's initial finding that extraschedular referral is warranted is a factual one but is necessarily based on a evidentiary threshold that is lower than that for the decision to award an extraschedular rating. If the Board refers a claim to the Director for extraschedular consideration and the Director denies an extraschedular rating, the Board's earlier decision to refer the claim doesn't automatically bind the Board to grant an extraschedular rating; however, if the Board denies an extraschedular rating, it must provide adequate reasons or bases for deviating from its earlier referral decision. Second, we hold that VA's refusal to define key terms in 38 C.F.R. § 4.16(b) frustrates judicial review and, after concluding that we needn't defer to the Secretary's interpretation of the regulation, we interpret it ourselves. Because the Board failed to explain why the evidence was sufficient to support referral but insufficient to support the award of an extraschedular rating, and because VA's refusal to define the relevant regulatory terms frustrates judicial review, we remand this matter to the Board for readjudication consistent with this opinion.
    3 R. at 8.
    4 The regulation uses the phrases "substantially gainful employment" and "substantially gainful occupation." These phrases are synonymous. Ortiz-Valles v. McDonald, 28 Vet.App. 65, 70 (2016).
    5 See 38 U.S.C. §§ 7252(a), 7266(a).
    I. FACTS AND PROCEDURAL HISTORY
    The veteran served honorably from November 1966 to November 19696 and is service connected for several disabilities with a combined disability rating of 50%.7 In September 2005, the veteran filed a claim for an increased rating due to TDIU.8 That claim was denied in January 2006 and the denial continued in July of that year.9
    In January 2011, the veteran submitted a VA Form 9, stating he couldn't work because of his disabilities.10 In March 2012 the veteran's claim for TDIU was denied.11 The veteran timely disagreed with that decision,12 and VA continued its denial in November 2012.13 The veteran then perfected an appeal to the Board.14
    In a July 2014 decision, the Board remanded the issue of entitlement to TDIU to a regional office (RO) for referral under § 4.16 to the Director for extraschedular consideration.15 In short, the Board referred the TDIU issue for extraschedular consideration. The Director denied entitlement to TDIU in March 2015,16 and the RO continued its denial that same month. The veteran then perfected an appeal to the Board, which also denied him an extraschedular rating because his "service-connected disabilities do not render him unable to secure and follow substantially gainful employment consistent with his education and special training."17 This appeal followed.
    6 R. at 4761, 4771-72.
    7 R. at 1610-11.
    8 R. at 2320-21.
    9 R. at 2288-92 (Jan. 2006 rating decision), 2249-56 (July 2006 rating decision).
    10 R. at 1914-17.
    11 R. at 1599-1615.
    12 R. at 1589-91.
    13 R. at 1529-64.
    14 R. at 1521-27.
    15 R. at 1459-81.
    16 R. at 45-48.
    17 R. at 8.
    II. ANALYSIS
    Is a Referral Decision Under 38 F.R. § 4.16(b) a Factual Finding? Typically, VA compensates veterans for their service-connected disabilities through its rating schedule, which is designed to reflect the average impairment in earning capacity that a veteran with a certain type of disability would experience.18 But, in certain circumstances, VA can determine that a veteran is unemployable as a result of his or her service-connected disabilities even when he or she hasn't met the requirements for a 100% rating.19 In those instances, 38 C.F.R.
    4.16(a) and (b) kick in. Section 4.16(a) addresses schedular TDIU, which applies where a veteran has a single disability rated at 60% or more, or two disabilities rated collectively at 70% or more where one of them is rated at least 40% or more. The veteran doesn't argue he's entitled to TDIU under subsection (a). Instead, this appeal is about § 4.16(b).
    20
    That section reads, in full:
    It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service- connected disabilities, but fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.[21]
    In Wages v. McDonald, this Court held that the Director's decision with respect to extraschedular consideration "is no different than an RO's decision in terms of its effect on the Board' statutory jurisdiction and the Board's standard of review."22 Thus, under § 4.16(b), VA adjudicators, including the Board,23 should refer claims to the Director for "all veterans who are unable to secure and follow a substantially gainful occupation" because of their service-connected disabilities.24 Then, the Director can either award or deny an extraschedular rating. If the Director
    18 See 38 C.F.R. § 4.1 (2018).
    19 See Withers v. Wilkie, 30 Vet.App. 139, 144 (2018).
    20 38 C.F.R. § 4.16(a) (2018).
    21 38 C.F.R. § 4.16(b).
    22 27 Vet.App. 233, 238 (2015).
    23 See Bowling v. Principi, 15 Vet.App. 1, 10 (2001) (holding that § 4.16(b) applies to the Board).
    24 38 C.F.R. § 4.16(b). We note that neither the RO nor the Board is permitted to decide in the first instance whether
    denies an extraschedular TDIU rating, the claim returns to the Board, which reviews the denial without deference to the Director just as the Board would review the RO's denial without deference to the RO.25 The Board then decides whether to award or deny an extraschedular rating.26 It's this three-step process that's at issue here.
    In July 2014, the Board remanded the veteran's TDIU claim so an RO could refer it for extraschedular consideration, stating that
    additional development is required before the remaining issue [of TDIU] is decided. The Veteran does not current [sic] meet the schedular criteria for the assignment of TDIU. However, a review of the record shows that the Veteran may be prevented from physical labor by limitations resulting from his service-connected ventral hernia. While the [October 2011] VA examiner indicated the Veteran was able to perform sedentary employment, the record suggests that the Veteran may not be able to obtain such employment as it is inconsistent with his education and occupational background.[27]
    The veteran argues the Board's 2014 referral decision was a binding factual finding that the Board impermissibly changed when it denied him an extraschedular rating in 2017.28 The Secretary argues the Board's 2014 referral decision "does not equate to a factual finding, but instead indicates simply [] that evidence of record warrants referral to the Director[.]"29 We don't entirely agree with either position as both the veteran's and the Secretary's arguments would lead to absurd results.
    If the veteran is right that the decision to refer a claim for extraschedular consideration is a binding factual finding, then the Director would be little more than a rubberstamp. Put simply, it can't be the case that when the Board refers a claim to the Director for extraschedular consideration and the Director denies an extraschedular rating, the Board then must award an extraschedular rating anyway because of its initial referral decision. Such a reading of § 4.16(b) would make the Director superfluous as any claim that reached the Director from the Board would inevitably be granted by the Board when returned to it. We have an obligation to avoid such an absurd result 30 an extraschedular rating is warranted, only whether the facts presented warrant referral to the Director. See Floyd v. Brown, 9 Vet.App. 88, 95 (1996).
    25 Wages, 27 Vet.App. at 238.
    26 Id.
    27 R. 1478 (emphasis added).
    28 See Appellant's Brief (Br.) at 10-12.
    29 Secretary's Br. at 8.
    30 See Atencio v. O'Rourke, 30 Vet.App. 74, 83 (2018) (noting that absurd results are "something courts should avoid and to shy away from any interpretation that makes the additional language mere surplusage.31 Nor is the veteran correct that 38 C.F.R. § 20.1303 applies here. That regulation states that a "previously issued Board decision will be considered binding . . . with regard to the specific case decided."32 Here, the "previously issued Board decision" in 2014 was a referral decision. The Board's decision to refer the TDIU issue and its decision to award a rating are different and distinct decisions such that the Board isn't precluded from denying an extraschedular rating after referring a claim for extraschedular consideration. And, it's for those same reasons that the "law of the case" doctrine doesn't apply.33
    But, on the other hand, the Secretary also can't be right that the referral decision isn't a factual finding as it clearly involves the application of a legal standard, § 4.16(b), to the facts of a given claim. Additionally, this Court, in an en banc opinion, Pederson v. McDonald, has held that the Board's referral denials are factual decisions to be upheld absent clear error.34 We can think of no principled reason why the decision not to refer a claim for an extraschedular determination is a factual one but a decision to refer a claim is not. Thus, and given the en banc Court's determination in Pederson,35 not only do we disagree with the Secretary's argument, but even if we wanted to we couldn't agree.
    Does Referral Under 38 F.R. § 4.16(b) Require the Board to Award an Extraschedular Rating? Having dispensed with the parties' arguments, we turn to the question of what effect, if any, does the Board's determination to refer a case for extraschedular consideration under 38 C.F.R.
    4.16(b) have when the Board later reviews the Director's decision not to award an extraschedular TDIU rating? We conclude that the decision to refer a claim for extraschedular consideration is a in statutory and regulatory interpretation"); see also, e.g., United States v. Wilson, 503 U.S. 329, 334 (1992) ("[A]bsurd results are to be avoided."); Timex V.I., Inc. v. United States, 157 F.3d 879, 886 (Fed. Cir. 1998) (applying "the canon that a statutory construction that causes absurd results is to be avoided if at all possible").
    31 See Sharp v. United States, 580 F.3d 1234, 1238 (Fed. Cir. 2009) (noting that the canon against surplusage requires the Court to avoid an interpretation that results in portions of text being read as meaningless); see also Duncan v. Walker, 533 U.S. 167, 174 (2001).
    32 38 C.F.R. § 20.1303 (2018).
    33 See Johnson v. Brown, 7 Vet.App. 25, 26 (1994) (the law of the case doctrine "preclude[s] reconsideration of identical issues" when "a case is addressed by an appellate court, remanded, [and] returned to the appellate court").
    34 27 Vet.App. 276, 286 (2015) (en banc).
    35 See Bethea v. Derwinski, 2 Vet.App. 252, 254 (1992) ("Only the en banc Court may overturn a panel decision.").
    factual finding that doesn't bind the Board when it later decides whether to award an extraschedular rating. This is so because the decisions to refer and to award a rating are fundamentally different. As we explain, the referral decision could affect the later "award" decision in a case-specific way, but there's no categorical relationship between these two distinct determinations.
    While the plain text of § 4.16(b) certainly doesn't explain how the referral and rating award decisions are different, "[w]hen assessing the meaning of a regulation, words should not be taken in isolation but rather read in the context of the regulatory structure and scheme."36 We review the interpretation of regulations without deference to the Board.37 Bearing in mind the regulatory structure and scheme VA has created to award extraschedular TDIU ratings, we hold that the initial extraschedular referral decision under § 4.16(b) addresses whether there's sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service- connected disabilities.38 The Director then performs his or her duties and, if the Director denies an extraschedular rating, the Board then, reviewing that decision without deference39 and bearing in mind the benefit of the doubt standard,40 decides whether the preponderance of the evidence nevertheless shows that a veteran is unemployable by reason of his or her service-connected disabilities.41
    VA's own internal guidelines support such a reading of § 4.16(b). The M21-1 provides that referral is appropriate, in part, when "there is evidence that the Veteran may be unable to secure or follow a substantially gainful occupation because of a service-connected disability."42 Of course, the M21-1 isn't binding on the Board43 but an interpretation of § 4.16(b) that is in line with VA's
    36 Atencio, 30 Vet.App. at 82 (citing King v. Shinseki, 26 Vet.App. 484, 488 (2014)).
    37 See id.; see also Tropf v. Nicholson, 20 Vet.App. 317, 320 (2006).
    38 In Stanton v. Brown, 5 Vet.App. 563, 570 (1993), the Court seemed to implement a similar standard. There, the Court held that a veteran who had given lay testimony (but nothing more) regarding his inability to seek or maintain employment had "presented a well-grounded claim for a total disability rating under section 4.16(b)." Thus, our holding merely elaborates on the standard used in Stanton.
    39 Wages, 27 Vet.App. at 239 (the Director's decision to deny an extraschedular rating "is simply a decision that is adopted by the RO and reviewed de novo by the Board").
    40 See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990).
    41 See Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001).
    42 VA ADJUDICATIONS PROCEDURES MANUAL (M21-1), pt. III, subpt. iv, ch. 6, § B (emphasis added).
    43 See, e.g., Gray v. Sec'y of Veterans Affairs, 875 F.3d 1102, 1108 (Fed. Cir. 2017), cert. granted, 139 S. Ct. 451
    (2018).
    practice lends support to our analysis. An interpretation of § 4.16(b) requiring different evidentiary standards at different times in the extraschedular process finds support in other areas of the law. For example, in McClendon v. Nicholson, this Court held that a veteran need only show "some indication" of a disability to trigger VA's duty to obtain a medical examination.44 But "some indication" is a standard far lower than that required for the ultimate determination whether a veteran's disability is related to his or her service. Similarly, in general civil litigation, a party seeking a preliminary injunction need only show he or she is "likely" to win on the merits.45 Yet when that party seeks a permanent injunction, the evidentiary threshold changes and he or she must show ultimate success on the merits.46
    One final point on this issue. The Board's obligation to provide an adequate statement of reasons or bases to support its decision47 also applies when the Board reviews the Director's decision not to grant an extraschedular TDIU rating. 48 Thus, the Board must ensure that it adequately explains its reasoning when a factual finding made at the referral stage comes out differently at the review stage. Some factors that may affect the Board's ability to reach a different result or the adequacy of its discussion of reasons or bases include, but are not limited to, the certainty or complexity of factfinding in the initial referral decision and to the extent to which the record has changed since the referral decision. Thus, the referral decision can still be relevant at the award stage in certain circumstances. For example, where the Board finds referral appropriate because "it is beyond dispute" that a veteran was unemployable because of his service-connected disabilities, more explanation might be needed for a contrary finding than where the Board's referral finding is more equivocal. It's also possible that no amount of explanation may overcome the Board's initial finding.
    Here, since the Board's decision didn't explain why the factual finding it made at the referral stage came out differently at the review stage, remand is warranted.49 On remand, the Board must ensure that it explains its different factual determinations at the referral and review stages.
    44 20 Vet.App. 79, 83 (2006).
    45 See, e.g., Reebok Int'l Ltd. v. J. Baker, Inc., 32 F.3d 1552, 1555 (Fed. Cir. 1994).
    46 See, e.g., Apple Inc. v. Samsung Electrs. Co., Ltd., 809 F.3d 633, 639 (Fed. Cir. 2015).
    47 Allday v. Brown, 7 Vet.App. 517, 527 (1995).
    48 See 38 U.S.C. § 7104(d)(1); see also Frost v. Shulkin, 29 Vet.App. 131, 139 (2017); Allday, 7 Vet.App. at 527;
    Gilbert, 1 Vet.App. at 56-57.
    49 See Tucker v. West, 11 Vet.App. 369, 375 (1998).
    Although we're remanding this matter to the Board because of its inadequate reasons or bases regarding its contradictory extraschedular determinations, we must also address the ambiguity of the phrase "unable to secure and follow substantially gainful employment." "Without a definition of the phrase or, at the very least, a list of factors that VA adjudicators should consider in making that determination, there is no standard against which VA adjudicators can assess the facts of a veteran's case," 50 thus leading to insurmountable reasons or bases errors in Board decisions.
    Interpreting "Substantially Gainful Employment" "Expert discretion is the lifeblood of the administrative process, but '[u]nless we make the requirement for administrative action strict and demanding, expertise, the strength of modern government, can become a monster which rules with no practical limits on its discretion.'"51 Although "the law does not demand perfect consistency in administrative decision-making,"52 "overly ambiguous standards almost inevitably lead to inconsistent application."53
    In Ferraro v. Derwinski, a case almost as old as this Court, the Court noted that "'[s]ubstantially gainful employment' is a term of art which . . . has no concrete definition."54 The Court left "the development of such a definition to the Secretary and urge[d] that he establish a clear definition for this term," explaining that "[t]his would be helpful, not only as an aid to veterans, but also as an aid to VA decision-makers and to this Court in future decisions."55 The Court's encouragement has gone unheeded for 27 years.
    The Court next addressed this issue in Moore v. Derwinski.56 There, the Court stated that "there is a need for the Secretary to clarify the regulations concerning unemployability."57 But the Court was "not yet prepared to impose a Court-created rule upon" the Board and "suggest[ed] to
    50 Cantrell v. Shulkin, 28 Vet. App. 382, 390–91 (2017).
    51 Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 167 (1962) (quoting New York v. United States, 342 U.S. 882, 884 (1951) (Black, J., dissenting)) (emphasis omitted)).
    52 South Shore Hosp., Inc. v. Thompson, 308 F.3d 91, 103 (1st Cir. 2002).
    53 King v. LaMarque, 464 F.3d 963, 966 (9th Cir. 2006).
    54 1 Vet.App. 326, 333 (1991).
    55 Id.
    56 1 Vet.App. 356 (1991).
    57 Id. at 359.
    the Secretary that there is much that could be borrowed from" federal appellate decisions interpreting a similar term, substantial gainful activity, found in Social Security regulations.58 Then, in 2000, the Court, after looking to Social Security regulations for guidance, defined the term but limited its definition to the facts of the particular case.59
    VA is aware of the problems created by the lack of defined terms in § 4.16(b). In September 1987, the U.S. General Accounting Office, now the Government Accountability Office (GAO), examined VA's TDIU rating process, concluding that the lack of defined terms in § 4.16 could lead to inconsistent outcomes and give "the appearance of arbitrary and inequitable decision[-
    ]making."60 Similarly, in June 2015, the GAO again investigated VA's TDIU analysis, concluding that "VA's procedures do not ensure that [TDIU] benefit decisions are well-supported."61
    Despite this issue's appearance before the Court so often, the Court's repeated encouragement, and the GAO findings, the Court again recently declined to define "substantially gainful employment" "without first allowing VA to take a position on the matter,"62 noting that "[i]t is VA's responsibility to define the terms contained within its regulations and the Court encourages it do so."63 Yet, from Ferraro in 1991 to Ortiz-Valles in 2016 to the matter before us today, VA has refused to provide an adequate definition. The lack of any articulable standards by which veterans' extraschedular TDIU claims are judged renders the Board's reasons or bases here inadequate.64 But this isn't the Board's fault. The regulation simply provides no guidance to either veterans or VA's own adjudicators, an inadequacy of VA's TDIU regulations that, as just discussed,
    58 Id.
    59 See Faust v. West, 13 Vet.App. 342, 355 (2000) ("In view of the fact that the Secretary has yet to issue a clear definition of substantially gainful employment, despite the Court's encouragement to that effect . . . , today we articulate such a definition for the purpose of dealing with the facts of this case.").
    60 U.S. GEN. ACCOUNTING OFFICE, IMPROVING THE INTEGRITY OF VA'S UNEMPLOYABILITY COMPENSATION PROGRAM at 18, 42 (Sept. 21, 1987).
    61 U.S. GEN. ACCOUNTABILITY OFFICE, VA CAN BETTER ENSURE UNEMPLOYABILITY DECISIONS ARE WELL SUPPORTED, GAO 15-464 (June 2015).
    62 Ortiz-Valles, 28 Vet.App. at 72.
    63 Id.
    64 See King, 464 F.3d at 966.
    has been well identified.65 Thus, today, we step in and interpret the meaning of being "unable to secure and follow substantially gainful employment."
    This isn't a revolutionary exercise. Indeed, unless they must defer to the promulgating agency, courts regularly define regulatory terms when they're ambiguous.66 Recently, this Court did just that when faced with an ambiguous term in Diagnostic Code 7522.67
    We begin our analysis by looking to the language of the regulation.68 If, from the language of the regulation, the plain meaning of the phrase "unable to secure and follow substantially gainful employment" is clear, then that meaning controls, and our inquiry is finished.69 But, if the language is ambiguous, then we may define the phrase unless we "must defer to the agency's interpretation of its regulation unless that interpretation is inconsistent with the language of the regulation, is otherwise plainly erroneous, or does not represent the agency's considered view on the matter."70 The language of § 4.16(b) is ambiguous. The regulation instructs "that all veterans who are
    unable to secure and follow a substantially gainful occupation" because of their service-connected disabilities will "be rated totally disabled" without defining what either "a substantially gainful occupation" is or what it means to be "unable to secure and follow" such an occupation.71 Section 4.16(a) provides that "substantially gainful employment" is employment that is not "marginal" with "marginal" defined as employment producing an annual income below the Federal poverty threshold for one person.72 But this is, at best and as we discuss below, an incomplete definition.
    65 See supra note 61.
    66 See, e.g., Young v. United Parcel Serv., 135 S. Ct. 1338, 1353-54 (2015); Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 155 (2012); see also Elgin Nursing v. U.S. Dep't of Health & Human Servs., 718 F.3d 488, 494 (5th Cir. 2013) ("Unfettered by DHHS's interpretation of the [regulation at issue], we apply the traditional tools of textual interpretation to determine its fair meaning[.]").
    67 See Williams v. Wilkie, 30 Vet.App. 134, 138 (2018) ("Although DC [Diagnostic Code] 7522 requires a 'deformity' for a compensable rating, VA has not expressly defined this term. The Court will therefore assign the ordinary meaning of this word.").
    68 See Cantrell v. Shulkin, 28 Vet.App. 382, 389 (2017) (citing Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409
    (1993)).
    69 See Tropf v. Nicholson, 20 Vet.App. 317, 320 (2006).
    70 Cantrell, 28 Vet.App. at 390; see also Auer v. Robbins, 519 U.S. 452 (1997).
    71 38 C.F.R. § 4.16(b).
    72 38 C.F.R. § 4.16(a).
    Thus, the plain language of the regulation insufficiently guides us as to the proper meaning of
    4.16(b)'s terms. Having concluded that the phrase is ambiguous, we turn first to the Secretary's views. In his supplemental brief, he defined substantially gainful employment as "employment that produces income exceeding the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person."73 This interpretation of § 4.16(b) merits no deference. First, the Secretary has not once, neither in his briefs nor at oral argument, asked for deference, a waivable argument.74 Second, even if we construe the Secretary's oral argument as seeking deference, this Court will "generally not entertain arguments raised by counsel at oral argument for the first time."75 Third, even if the issue of deference had been raised, we review the Board's decision, and there's no indication that the Board adopted or was even aware of any definition along the lines the Secretary presented to the Court. Fourth, it's unclear what we would defer to. At oral argument, the Secretary's counsel referenced the M21-1 as a possibly defining the terms in § 4.16(b).76 But the Board didn't cite the M21-1, and even if it had, the M21-1 isn't binding on the Board.77 If we decided to defer to the nonbinding M21-1, we would be undermining the Federal Circuit's holding in Gray, because the M21-1 would effectively bind the Board as we'd be required to defer to it and thus judge the Board against its provisions.78 Fifth, VA may arguably be
    73 Secretary's Supplemental Br. at 10.
    74 See Mass. Mut. Life Ins. Co. v. United States, 782 F.3d 1354, 1369 (Fed. Cir. 2015); Norvell v. Peake, 22 Vet.App. 194, 201 (2008).
    75 Sellers v. Wilkie, 30 Vet.App. 157, 166 (2018); see also McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1263 (11th Cir. 2004) ("A party is not allowed to raise at oral argument a new issue for review."); Pieczenik v. Dyax Corp., 265 F.3d 1329, 1332-33 (Fed. Cir. 2001) ("It is well settled that an appellant is not permitted to make new arguments that it did not make in its opening brief."); Norvell, 22 Vet.App. at 201 ("This Court and the U.S. Court of Appeals for the Federal Circuit have repeatedly discouraged parties from raising arguments that were not presented in an initial brief to the Court.").
    76 Oral Argument at 42:39-43:09, Ray v. Wilkie, U.S. Vet. App. No. 17-0781 (oral argument held Sept. 5, 2018). VA's M21-1 part IV, subpart ii, chapter 2, section F.1.c defines substantially gainful employment as
    [e]mployment at which non-disabled individuals earn their livelihood with earning comparable to the particular occupation in the community where the veteran resides. It suggests a living wage. Substantially gainful employment is competition (not protected) employment and with earning exceeding the amount established by the U.S. Department of Commerce, U.S. Census Bureau, as the poverty threshold for one person.
    77 See Gray, 875 F.3d at 1108.
    78 See Overton v. Wilkie, 30 Vet.App. 257 (2018).
    owed deference under Skidmore v. Swift & Co.,79 but applying Skidmore here wouldn't change the outcome. Under Skidmore, we're required to consider VA's "body of experience and informed judgment"80 by considering "the thoroughness evident in [the Agency's] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control."81 But Skidmoredeference (to the degree it truly is "deference"), unlike Auer deference, isn't controlling.82 And the Secretary's "interpretation" offered here—an interpretation our concurring colleague accepts at face value83—shares many of the same features as the one the Supreme Court recently rejected after conducting a Skidmore analysis. In Young, the Department of Labor promulgated guidance on the proper meaning of "other persons" as used in the Pregnancy Discrimination Act.84 The Supreme Court analyzed the agency's proffered interpretation under the Skidmore framework, concluding that its interpretation didn't merit special consideration because it was "a position about which [its] previous guidelines were silent" and was "inconsistent with positions for which the Government has long advocated," and because the agency failed to "explain the basis of its guidance."85 Here, similar inconsistencies and lack of rationale plague the Secretary's definition.
    Elsewhere, VA has stated that TDIU adjudicators "must consider a number of factors, including the frequency and duration of periods of incapacity or time lost from work due to disability, the veteran's employment history and current employment status, and the veteran's annual income from employment, if any."86 Thus, VA's own interpretation is inconsistent, and neither the M21-1 nor the Secretary's proffered definition fully encapsulates the entire TDIU analysis—that is, whether a veteran is "unable to secure and follow substantially gainful employment" because of his or her service-connected disabilities.87 Instead, they merely address
    79 323 U.S. 134 (1944).
    80 Id. at 140.
    81 Id.
    82 Id. ("[T]he rulings, interpretations, and opinions of [the Agency] . . . [are] not controlling upon the courts.").
    83 See post at 23.
    84 135 S. Ct. at 1351.
    85 Id. at 1352.
    86 VA Gen. Coun. Prec. 5-2005, at ¶5 (Nov. 25, 2005).
    87 This inconsistency, overlooked by our concurring colleague, matters because "[a]n agency interpretation of a relevant provision which conflicts with the agency's earlier interpretation is 'entitled to considerably less deference'
    one component of that analysis: the economic requirement. That requirement is straightforward: To receive an extraschedular TDIU rating, a veteran must have an earned annual income that doesn't exceed the Federal poverty threshold for one person.88 But the economic requirement, standing alone, isn't enough. Were this the only requirement, the regulation's command that adjudicators "include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue" 89 would make no sense because none of that information would be needed to determine whether a veteran's earned annual income exceeds the federal poverty threshold. Thus, the M21-1 and Secretary have offered, at best, incomplete interpretations of § 4.16(b).
    The Secretary argues this incompleteness is an intentional and beneficial feature of the regulation. In his view, § 4.16(b) is designed to be "flexible" and "intentionally broad."90 But that "flexibility" means that neither veterans nor this Court understand what the regulation means. Thus, the Secretary's position is untenable and wouldn't be entitled to deference because, as we’ve said, it's "the equivalent of 'because I say so'" 91 or "we know it when we see it." 92 Further, "vagueness is especially unhelpful when it comes to TDIU, where individual assessment is crucial."93 The GAO aptly illustrated the effect of this vagueness:
    VA procedures do not ensure that Individual Unemployability benefit decisions are well-supported. For example, contrary to federal internal control standards, the guidance on determining unemployability is incomplete for ensuring consistency. In discussion groups with GAO, VA's rating specialists said they disagreed on the factors they need to consider when determining unemployability, and had difficulty separating allowable from non-allowable factors. Some specialists said these challenges create the risk that two raters could examine the same evidence and reach an opposite decision to approve or deny a claim.[94]
    than a consistently held agency view." I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 446 n.30 (1987) (quoting Watt v. Alaska, 451 U.S. 259, 273 (1981)).
    88 38 C.F.R. § 4.16(a).
    89 38 C.F.R. § 4.16(b).
    90 Secretary's Supplemental (Supp.) Br. at 14-15.
    91 Hood v. Brown, 4 Vet.App. 301, 303 (1993).
    92 Cantrell, 28 Vet.App. at 390 ("Essentially the Secretary is asking the Court to defer to a 'we know it when we see it' definition of employment in a protected environment and to trust that the hundreds of VA adjudicators across the country will uniformly and consistently apply that undefined term without guidance from the Secretary.").
    93 Withers, 30 Vet.App. at 148.
    94 U.S. Gov't Accountability Office, GAO 15-464, VA Can Better Ensure Unemployability Decisions Are
    Thus, we are left with an undefined and ambiguous regulatory phrase that we interpret as we would any other statute or regulatory phrase.
    Ideally, VA, with its expertise, would have interpreted the phrase at some point afterthis Court first encouraged it to do so in 1991, but it hasn't. So, we provide guiding principles to frame the proper inquiry for extraschedular TDIU. 95 As we noted above, the Court has defined "substantially gainful employment" before.96 Thus, we look to what the Court did there and draw upon existing TDIU caselaw and the litany of cases in which the Court has encouraged VA to adopt a complete definition.
    "[E]ntitlement to TDIU is based on an individual's particular circumstances." 97 We recognize, as both the Secretary and veteran agree,98 that with respect to "substantially gainful employment" § 4.16(b) includes an economic component: a veteran's income must be lower than the Federal poverty threshold.99 But there's also no question that being "unable to secure and follow a substantially gainful employment" includes a non-economic component. "When the Board conducts a TDIU analysis, it must take into account the individual veteran's education, training, and work history."100 "The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment."101 As to mental abilities in particular, the Court has cited specific examples, such as a lack of social skills102 and workplace stress.103 "[W]e note that a determination whether a person is capable of engaging
        Well Supported, (2015).
    95 We note that both VA and veterans have means with which to change any definition or guidelines we provide today. VA can engage in notice-and-comment rulemaking under 38 U.S.C. § 501(a) and veterans may petition for rulemaking under 5 U.S.C. § 553(e) and appeal any denial to the Federal Circuit. See Gray, 875 F.3d at 1109.
    96 See Faust, 13 Vet.App. at 355.
    97 Rice v. Shinseki, 22 Vet.App. 447, 452 (2009); see also 38 C.F.R. § 4.15 (2018).
    98 See Appellant's Supp. Br. at 7; Secretary's Supp. Br. at 10.
    99 See Ortiz-Valles, 28 Vet.App. at 71 (noting that "substantially gainful employment" is employment "capable of producing income that is more than marginal—i.e., with income that exceeds the amount published by the U.S. Department of Commerce for the poverty threshold for one person").
    100 Pederson, 27 Vet.App. at 286.
    101 Van Hoose v. Brown, 4 Vet.App. 361, 363 (1993) (emphasis in original).
    102 Gleicher v. Derwinski, 2 Vet.App. 26, 28 (1991).
    103 Washington v. Derwinski, 1 Vet.App. 459, 465 (1991).
    in a substantially gainful occupation must consider both that person's abilities and his employment history."104
    To apply meaning to § 4.16(b), we, just as the Court did in Faust,105 choose to look to comparable Social Security regulations, specifically 20 C.F.R. §§ 404.1510 and 404.1572. Social Security regulations define "substantially gainful activity" as "work that—(a) [i]nvolves doing significant and productive physical or mental duties; and (b) [i]s done (or intended) for pay or profit."106 These regulatory provisions clarify elsewhere that work can be substantial "even if it is done on a part-time basis or if [claimants] do less, get paid less, or have less responsibility than when [they] worked before," and that work is gainful "if it is the kind of work usually done for pay or profit, whether or not a profit is realized."107 These regulations serve as useful guides for us in crafting our own principles for the unique nature of the veterans benefits system. To be sure, the Court has previously declined to order VA to adopt Social Security definitions.108 And, to be clear, we don't adopt Social Security's regulations as VA regulations. To the extent we discuss them, we look to them only for "appropriate guidance," as the Court has done before.109
    Thus, after canvassing this Court's TDIU caselaw, relevant Social Security regulations, and the parties' arguments, we interpret the phrase "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to have two components: one economic and one noneconomic. The economic component simply means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. As for the noneconomic component, the Secretary himself states that "determining eligibility for TDIU requires more than determining the presence or absence of employment producing income exceeding any particular threshold," and "the ultimate inquiry is instead on the individual claimant's ability to secure or follow that type of employment."110 Thus, in order to fully clarify our interpretation that the regulation has both an economic and
        104 Faust, 13 Vet.App. at 355.
    105 Id.; see also Moore, 1 Vet.App. at 359.
    106 20 C.F.R. § 404.1510 (2018).
    107 20 C.F.R. § 404.1572(a), (b) (2018).
    108 See, e.g., Withers, 30 Vet.App. at 148-49; Beaty v. Brown, 6 Vet.App. 532, 538 (1994); Moore, 1 Vet.App. at 359.
    109 Faust, 13 Vet.App. at 355.
    110 Secretary's Supp. Br. at 11.
    noneconomic component, we also provide guidance as to the meaning of a veteran's ability to "secure and follow" such employment.
    In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to
    the veteran's history, education, skill, and training;
    111
    whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and
    112
    113
    whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and
    114
    By discussing these potentially relevant factors, we don't create a checklist that must be run completely through in every case. Instead, discussion of any factor is only necessary if the evidence raises it.115
    We recognize that this is the first occasion in which the Court has interpreted "unable to secure and follow a substantially gainful occupation" under § 4.16 and provided guidance on what it means to "secure and follow" said employment. But a "central tenet of administrative law [is] that a reviewing court may not affirman administrative agency's actions on a reasoned basis different from the rationale actually put forth by the agency."116 This rule is absolute. Courts are
        111 Pederson, 27 Vet.App. at 286; VA Gen. Coun. Prec. 5-2005, at ¶5.
    112 See 20 C.F.R. § 404.1567 (2018).
    113 See, e.g., Van Hoose, 4 Vet.App. at 363.
    114 Gleicher, 2 Vet.App. at 28; Washington, 1 Vet.App. at 465.
    115 See Dela Cruz v. Principi, 15 Vet.App. 143, 149 (2001); Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991).
    116 Pub. Media Ctr. v. F.C.C., 587 F.3d 1322 (D.C. Circuit 1978); see Gulf States Utils. Co. v. FPC, 411 U.S. 747, 764 (1973); SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (Chenery II); SEC v. Chenery Corp., 318 U.S. 80, 95
    (1943) (Chenery I).
    "powerless to affirm [an] administrative action by substituting what it considers to be a more adequate or proper basis. To do so would propel the court into the domain which Congress has set aside exclusively for the administrative agency."117 Thus, we set aside the decision on appeal and remand this matter to the Board to provide reasons or bases that comport with this opinion and to develop any further evidence required.118
    In pursuing his case on remand, the veteran is free to submit additional evidence and argument, including the arguments raised in his briefs to this Court.119 The Board must consider any such evidence or argument.120 The Court reminds the Board that "[a] remand is meant to entail a critical examination of the justification for the decision." 121 The Board must proceed expeditiously.122
    Our Concurring Colleague's Concerns Our concurring colleague takes issue with our decision to interpret "substantially gainful employment." He argues that, by providing an interpretation about an ambiguous regulation that the Court has pleaded with VA to define for 25 years, our decision "sweeps beyond the Court's limited, but essential, role of interpreting laws written by other branches of Government and instead directs the substantive content of the regulation itself."123
    First, as our colleague himself notes, "this Court retains the authority to provide the final interpretation of [VA] regulations" and has "the obligation to do so in certain circumstances."124 Section 7261, title 38, U.S. Code, lays out our scope of review. It commands us to "interpret constitutional, statutory, and regulatory provisions" "to the extent necessary to [our] decision[.]"125 Our congressional mandate is clear. It's our duty to review the Board's decisions and "determine
        117 Chenery II, 332 U.S. at 198.
    118 See Turner v. Shulkin, 29 Vet.App. 207, 220 (2018).
    119 Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order); see also Clark v. O'Rourke, 30 Vet.App. 92, 97 (2018).
    120 Kay v. Principi, 16 Vet.App. 529, 534 (2002).
    121 Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991).
    122 38 U.S.C. §§ 5109B, 7112.
    123 Post at 24 (emphasis in original).
    124 Post at 23.
    125 38 U.S.C. § 7261(a)(1).
    the meaning or applicability of the terms of an action of the Secretary[.]"126 Indeed, judicial interpretation has been a cornerstone of the American legal system since the foundation of the Republic.127 "The Judiciary has a responsibility to decide cases properly before it, even those it 'would gladly avoid.'"128
    Our colleague fails to address the inconsistencies in VA's proffered interpretation. He would have us adopt, without deferring to, the Secretary's interpretation because "it represents the most natural reading" of the regulation.129 He claims, without support, that such a definition has "distinct benefits" because it "complements" the definition of "marginal employment" the Court articulated in Ortiz-Valles and "is consistent with VA's historical practice of adjudicating TDIU."130 But, as we noted above, the Secretary's proffered interpretation in this appeal—which, it begs repeating, only came about after more than 25 years of judicial prodding and VA inaction— is actually inconsistent with previous VA guidance.
    The Secretary has interpreted being "unable to secure and follow substantially gainful employment" in this appeal as "employment that produces income exceeding the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person."131 Yet, he's previously interpreted § 4.16(b) to require adjudicators to "consider a number of factors, including the frequency and duration of periods of incapacity or time lost from work due to disability, the veteran's employment history and current employment status, and the veteran's annual income from employment, if any."132 This is an inconsistency in VA's "historical practice of adjudicating TDIU" that neither our colleague nor the Secretary can explain because, as we explained above, the Secretary's interpretation is absurd.133 It reads out the regulation's
        126 Id.; see also Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 221 (1995) ("The power of '[t]he interpretation of the laws' [is] 'the proper and peculiar province of the courts.'" (citations omitted)).
    127 See Marbury v. Madison, 5 U.S. 137, 177 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is").
    128 Zivotofsky v. Clinton, 566 U.S. 189, 194-95 (2012) (quoting Cohens v. Virginia, 19 U.S. 264, 404 (1821)).
    129 Post at 23.
    130 Id.
    131 Secretary's Supp. Br. at 10.
    132 VA Gen. Coun. Prec. 5-2005, at ¶5 (Nov. 25, 2005).
    133 Our colleague notes that the Secretary's proffered interpretation is consistent with the M21-1. See post at 23. But, as we stated above, the Board didn't cite the M21-1, and even if it had, the M21-1 isn't binding on the Board. See Gray, 875 F.3d at 1108. The fact that line adjudicators are bound by the M21-1 is irrelevant to us here as we review
    command that adjudicators "include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue"134 as none of that information is needed to determine whether a veteran's earned annual income exceeds the Federal poverty threshold. Our colleague fails to explain how the Secretary's interpretation is viable in the context of the entire regulation, instead focusing only on its economic means testing component.135 Were he and the Secretary correct, all veterans across the Nation earning less than the Federal poverty line would be entitled to extraschedular TDIU benefits without any analysis of whether they can "secure and follow a substantially gainful occupation" despite their service-connected disabilities. The only test would be an income-based one. That simply makes no sense. We reject entirely such a limited interpretation.136
    Notably, our colleague's views are inconsistent. On the one hand, he warns that our decision is a "restructure[ing] of [the way] VA adjudicates TDIU to bring it into alignment with the framework used by the Social Security Administration."137 On the other, he writes that "many of" the factors we elucidate today "are already presumably captured by the open-ended inquiry that VA regulations and our caselaw already impose on the Board[.]"138 Both can't be true. Either our decision is a restructuring of the TDIU framework or it merely identifies relevant factors that Board members already implicitly consider. If the former, it's the result of 25 years of VA inaction. If the latter, then our decision is sound as adjudicators, claimants, and this Court can only benefit from further clarity.139
    the decisions of the Board, not line VA adjudicators. See 38 U.S.C. § 7252(a).
    134 38 C.F.R. § 4.16(b).
    135 See McCuin v. Sec'y of Health and Human Servs., 817 F.2d 161, 169 (1st Cir. 1987) ("In interpreting statutes and regulations, courts must try to give them a harmonious, comprehensive meaning, giving effect, when possible, to all provisions.").
    136 See, e.g., Atencio, 30 Vet.App. at 83 (courts should avoid interpreting regulations to lead to an absurd result).
    137 Post at 21.
    138 Post at 25.
    139 See Allday, 7 Vet.App. at 527; Gilbert, 1 Vet.App. at 56-57; see also Chenery II, 332 U.S. at 196-97 ("If the administrative action is to be tested by the basis upon which it purports to rest, that basis must be set forth with such clarity as to be understandable."); Int'l Longshoremen's Assoc. v. Nat'l Mediation Bd., 870 F.2d 733, 735 (D.C. Cir. 1989) ("The basis for an administrative decision, of course, must be clear enough to permit effective judicial review.").
    Our colleague also oversimplifies and recasts our holding regarding what are, in his terms, "a set of mandatory factors" the Board must consider in making TDIU determinations.140 As we explained above, "[b]y discussing these potentially relevant factors, we don't create a checklist that must be run completely through in every case. Instead, discussion of any factor is only necessary if the evidence raises it."141 Finally, our colleague overlooks one crucial fact: VA is free to revise its regulations as it sees fit if it disagrees with our interpretations. Indeed, recently VA has done just that.142
    Our decision here is simple: VA refused to define key regulatory terms for over 25 years, this frustrates judicial review of this appeal, and we have, therefore, interpreted § 4.16(b) after conducting all required deference analyses. We break no new ground. We simply engage in a routine act of regulatory interpretation.
    III. CONCLUSION
    The Court SETS ASIDE the Board's February 15, 2017, decision and REMANDS the matter to the Board for further adjudication.
    TOTH, Judge, concurring in part and in the judgment: I join the Court's decision on the effect of the Board's referral for extraschedular consideration. The treatment of the issue is cogent, faithful to the substance of applicable regulations, and provides a useful development of the framework that should allow for more consistent adjudication of TDIU. I respectfully decline, however, to join the Court in its definition of "substantially gainful employment."143 Instead of merely defining an ambiguous term, the Court restructures how VA adjudicates TDIU to bring it into alignment with the framework used by the Social Security Administration. The approach taken
        140 Post at 23 (emphasis in original).
    141 Supra at 17.
    142 See, e.g., Department of Veterans Affairs, Extra-Schedular Evaluations for Individual Disabilities, 82 Fed. Reg. 57,830 (Dec. 8, 2017) (abrogating Johnson v. McDonald, 28 Vet.App. 136 (2016)).
    143 38 C.F.R. § 4.16 mentions both "substantially gainful employment" and "substantially gainful occupation." In Ortiz-Valles v. McDonald, we held these terms to be interchangeable in substance as regards their use in § 4.16. I therefore discuss only "substantially gainful employment" with the understanding that it covers both discrete terms. 28 Vet.App. 65, 70 (2016).
    by the Social Security Administration might be more sensible, or just, but it is not one that we can impose on VA absent a clear indication that Congress intended this approach.
    All administrative law involves the separation of powers, and few cases demonstrate this fact more plainly than this one. Indeed, this case may serve as a cautionary tale for why administrative agencies should at least attempt to define their own ambiguous terms rather than leaving a blank slate for a court to supply its own meaning. As the majority notes, we first asked VA for a definition of "substantially gainful employment" in Ferraro v. Derwinski, 1 Vet.App. 326, 333 (1991), and repeated this request over the years in a series of cases. See Moore v. Derwinski, 1 Vet.App. 326 (1991); Faust v. West, 13 Vet.App. 342, 355 (2000); Ortiz-Valles v.
    McDonald, 28 Vet.App. at 70.
    Unmoved by our repeated requests, VA doubled down in its initial briefing, contending that it need not provide a definition for "substantially gainful employment," as the criteria established in § 4.16 are "intentionally broad and intended to allow VA adjudicators 'in the judgment of the rating agency' the ability to determine whether the facts of any case establish individual unemployability due to service connected disabilities." Sec's Br. at 15. Indeed, this was largely the same position that VA forwarded a year ago in a different TDIU case, Cantrell v. Shulkin, 28 Vet.App. 382, 393 (2017). In Cantrell, the Agency contended that it need not provide a definition for what it meant to work "in a protected environment" to allow "the factfinder to make a determination on a case-by-case basis." Id. at 390. In response, we took VA to task for asking the Court to defer to a standard-less, "we know it when we see it" definition. Id.
    One cannot help notice a recurring theme: VA promulgates broad, open-ended regulations containing undefined terms and then ignores this Court's entreaties to develop working definitions for such terms. As justification, VA points to the fact-specific nature of the overall adjudication itself, as though this somehow prevents the Agency from formulating interpretations of specific terms within the regulation. But although the factors that render someone unable to work may be manifold and open-ended, that doesn't mean that specific terms such as "substantially gainful employment," "marginal employment," or "protected environment" must remain as moving targets, bending to the discretion of factfinders. These terms are readily capable of definition, regardless of how open-ended the overall adjudication may be.
    As a matter of comity, courts grant executive agencies the opportunity to first explain how they interpret their own regulations and generally defer to such interpretations when they represent
    agency expertise, have a working history within the agency, and are consistent with the regulation's language. See Auer v. Robbins, 519 U.S. 452 (1997). For a fuller explanation, see Aditya Bamzai, The Origins of Judicial Deference to Executive Interpretation, 126 Yale L. J. 908 (2018). To be sure, there are many complex issues related to agency deference that remain unsettled, as evidenced by the fact that the Supreme Court recently took a case to address some of these questions, Kisor v. Wilkie, 869 F.3d 1360 (Fed. Cir. 2017), cert. granted, No. 18-15, 2018 U.S. LEXIS 7219 (Dec. 10, 2018). But this much is certain: when an agency makes no attempt over the course of decades to define specific terms, the usual interplay between court and agency breaks down. Rather than treating its regulations as closely held property, VA would do well to recognize that this Court retains not only the authority to provide the final interpretation of its regulations, but the obligation to do so. See 38 U.S.C. § 7261(a)(1); Perez v. Mortgage Bankers Ass'n, 135 S. Ct. 1199, 1222-23 (2015) (Thomas, J., concurring). VA can either participate in this process or not, but it cannot wish it away.
    I agree, then, with my colleagues that Auer deference is not warranted here because at no point did the Agency present an actual interpretation of "substantially gainful employment" that had any bearing on its adjudication of Mr. Ray's case. When pressed by this Court to provide a definition, VA eventually did so; specifically, the Secretary proposed the phrase to mean "employment that produces income exceeding the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person." Sec's Supp. Br. at 10. Notably, this definition is consistent with the standard set out in the M21-1, which binds line adjudicators and which the Secretary cited in his supplemental brief. Id. at 11 n.3; see M21-1, pt. IV, sbpt. ii, ch. 2, sec. F.1.c.
    The majority rightfully explains why we cannot confer Auer deference to this proposed definition, but it never explains why the definition is unpersuasive even under the more demanding (to an agency) persuasiveness standard spelled out in Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). For my part, I find this definition persuasive as it represents a natural reading of "substantially gainful employment" and coheres with the overall structure and context of § 4.16. This definition, furthermore, has distinct benefits: it is clear, it complements the definition of "marginal employment" set out in § 4.16(a), and it is consistent with VA's historical practice of adjudicating TDIU. As a clearly identifiable marker, it puts to rest any confusion about what "substantially gainful employment" might mean for an individual factfinder.
    Rejecting VA's narrow definition, the Court takes a broader approach and attempts to reduce to a single definition what it means to be "unable to secure or follow a substantially gainful occupation." In so doing, it looks "to comparable Social Security regulations" for "appropriate guidance," ante at 16, and then proceeds to list a set of mandatory factors that "attention must be given to." Id. These factors are taken directly from Social Security regulations, particularly from 20 C.F.R. §§ 404.1510, 404.1560-404.1569a, and 404.1572.
    But there are a few problems with this approach. Outside of the term "substantially gainful," nothing in that phrase is actually ambiguous—it's merely open-ended. As a matter of plain language, to be "unable to secure or follow" an "occupation" or "employment" means only that a veteran is not able to work—a wholly straightforward matter for a factfinder, who need merely find evidence that the veteran is not working. Rather than resolving a textual ambiguity, the Court proposes a definition designed to account for all the possible reasons why a veteran might not be able to work. This approach might fit better if we focused on the phrase "as a result of" in 4.16(a) or "by reason of" in 4.16(b), which is the proximate cause language linking the veteran's disability to the inability to work. But even focusing on the proximate cause language is problematic because that language does not present an interpretive ambiguity; it merely states a required showing that the disability—and not other factors—be the discrete cause of the veteran's inability to get or keep a job. The proximate cause requirement may be open-ended in that it accounts for any number of factors, but it does not comprise a textual ambiguity.
    Which gets to the deeper concern I have about our proposed definition: it seems out of proportion to any interpretive problem presented by the text of the regulation. In its scope, it rings more legislative than judicial in nature as it sweeps beyond the Court's limited, but essential, role of interpreting laws written by other branches of government and instead directs the substantive content of the regulation itself. Before our ruling, the Board faced an open-ended regulation adjudicating TDIU; now it must consider the same regulation in light of veteran's ability to do "heavy" or "very heavy" work, "get along with coworkers," "adapt to change," and so forth. Ante at 17.
    The sweeping nature of our definition might fit better if we held the current regime of TDIU adjudication to be arbitrary as a result of a lack of meaningful standards, but that isn't the case. Broad statutes or regulations sometimes require a court to interpret and reduce an open-ended provision into a framework that allows for consistent adjudication. But as far as I can tell, while
    the Court has repeatedly chided VA for leaving material terms undefined, it has never claimed that TDIU adjudications under § 4.16 are standard-less or arbitrary. While open-ended, the framework contains a set of straightforward elements: TDIU is warranted when a veteran is "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities." 38 C.F.R.
    4.16(a). Thus, a TDIU claimant must show that he or she is (1) unable to secure or follow, (2) a substantially gainful occupation or employment, (3) as a result of, (4) service-connected disabilities (or disability). Pederson v. McDonald, 27 Vet.App. 276, 286 (2015) (en banc). Basically, TDIU amounts to a showing of whether a veteran's service-connected disabilities, and not other factors, render the veteran unable to work. Id. Notably, many of the factors mandated by the Court are already presumably captured by the open-ended inquiry that VA regulations and our caselaw already impose on the Board—namely to address all relevant matters raised in a veteran's case. The difference, I believe, is that under the plain language of § 4.16, adjudicators must account for how a disability affects a veteran's ability to work based on the evidence of record rather than a court-imposed set of factors. To reduce all conceivably relevant factors into a comprehensive, catch-all, definition effectively recasts the substance of the regulation into a creation of this Court; it converts an otherwise open-ended but straightforward inquiry of whether a veteran's disability is the proximate cause of his or her inability to work into something akin to a multi-point inspection evaluating a variety of factors whose relevance to any case is uncertain.
    I respectfully decline to join the section of Court's opinion defining "substantially gainful employment" as I believe that it goes beyond interpreting the text of a regulation drafted by a separate branch of government and instead grafts on substantive factors that do not derive from the regulation itself. To me, this falls closer to an exercise of legislative than judicial authority. Because courts possess no such legislative authority, we cannot impose on agencies our own notions of what laws and procedures we deem best. See Vermont Yankee Nuclear Power Corp. v. NRDC, Inc., 435 U.S. 519, 549 (1978).
     
    RayED_17-781-4.pdf

    Tbird
    The Department of Veterans Affairs (VA) recently announced changes to the VA Schedule for Rating Disabilities (VASRD) related to digestive conditions. The updates include new or modified rating criteria for 55 medical conditions, which take into account modern medical knowledge and advancements in treating specific disabilities. These changes aim to provide Veterans with more accurate compensation for their disabilities.
    Three significant changes that will impact Veterans include the new evaluations for celiac disease, irritable bowel syndrome (IBS), and hemorrhoids. Starting May 19, Veterans with celiac disease will be evaluated under specific diagnostic codes and eligible for an evaluation ranging from zero to 80 percent. Previously, they were evaluated using rating criteria that ranged from zero to 30 percent. The rating criteria for IBS have also been adjusted, and Veterans may be entitled to 10, 20, or 30 percent evaluations based on the frequency of symptoms. Additionally, mild or moderate hemorrhoids will now qualify for the 10 percent evaluation.
    The VA has updated the rating schedule for several body systems since September 2017, including dental and oral conditions, endocrine system, gynecological conditions, organs of special sense (eye conditions), skin, hematologic and lymphatic systems, infectious diseases, immune disorders, and nutritional deficiencies, musculoskeletal system, and muscle injuries, genitourinary and cardiovascular systems.
    It is important to note that there will be no change to any Veteran's current rating based solely on these updates. However, if a Veteran currently receives compensation for a service-connected condition, they can apply for increased compensation. A reduction in evaluation will only occur if there is an improvement in a disability sufficient to warrant a reduction under the former criteria. Claims related to these body systems that were pending on May 19 will be considered under both the old and new rating criteria, and whichever criteria is more favorable to the Veteran will be applied.
    For more information, Veterans can visit the Federal Register webpage for a complete list of the conditions impacted by this schedule change and VA benefits or apply for compensation.

    Tbird
    Social Security Summary of Administrative Review Process    Source: SSA.gov GN 03101.001 Effective Dates: 09/19/2023 TN 20 (09-23)
    A. Administrative Review Process Defined
    A claimant or appointed representative who disagrees with an initial determination or decision may request further review under the administrative review process, also known as the appeal process. The claimant or appointed representative must request a review within 60 days of the decision, or the right to further review will be lost.
    B. Steps In The Administrative Review Process
    1. Reconsideration
    Reconsideration is the first step in the administrative review process for individuals who disagree with the initial determination unless a hearing is the first level of appeal.
    We provide the opportunity for an Administrative Law Judge (ALJ) hearing, as the first step in the administrative review process, for revised initial determinations on non-medical issues and determinations involving a request for waiver of an adjustment or recovery of an overpayment. For information on reopenings and appeal rights, see GN 04001.090.
    Reconsideration for Title II consists of a case review and disability hearing. The method used depends on the issue involved. It is a case review for nonmedical issues. For medical issues, it is a case review for initial claims and a disability hearing, which is a face-to-face reconsideration for all medical cessation cases. For more information on reconsideration, see GN 03102.000; for more information involving medical cessation and adverse reopening determinations, see DI 12026.001.
    2. Hearing before an ALJ
    After we make a reconsideration determination, the next step of the appeal is a hearing before an ALJ. See GN 03103.000, Hearings.
    3. Appeals Council (AC) review
    If the claimant or appointed representative disagrees with the ALJ’s decision or the dismissal of a hearing request, they may ask the AC to review the action. The AC may dismiss or deny the request for review, or the AC may grant the request and either issue a decision or remand the case to an ALJ. The AC may also review an ALJ’s decision (within 60 days of the hearing decision or dismissal) on its own motion. The AC has final review authority for SSA. See GN 03104.000, Appeals Council Review.
    C. Alternative Appeals Process
    1. Expedited appeals process (EAP)
    The claimant or appointed representative may request an EAP only after appealing through the reconsideration step. The claimant or representative can use the EAP in cases where they do not dispute SSA's version of the facts in the claim. Rather, they may challenge the law's constitutionality, underlying the determination. See GN 03107.000, Expedited Appeals Process.
    NOTE: SSA and all parties to the determination must agree to use EAP.
    2. Federal court review
    The AC review completes the administrative review process. If the claimant or appointed representative is still dissatisfied, they may request a judicial review by filing a civil action in a federal district court.
    D. Considering Multiple Issues At Different Steps Of Appeal
    A case can have different issues at different appeal steps.
    1. Disposition of the ALJ’s decision
    When the ALJ issues a decision and notifies the claimant or their appointed representative, the case goes to the program center (PC) to effectuate the ALJ’s decision. The PC then sends a notice on those issues not addressed by the ALJ. This notice provides the claimant or representative with reconsideration, which is the next level of appeal. The ALJ's notice provides the claimant or representative with the AC’s review, which is the next step of the appeal.
    2. New issue before the ALJ
    The ALJ may consider a new issue at the hearing, even though it arose after the hearing request and not considered in the initial or reconsidered determination. The ALJ notifies all parties to the hearing about the new issue.
    E. How We Conduct The Administrative Review Process
    Administrative reviews are informal and non-adversarial. At each step of the appeals process, the claimant can present any helpful information and ask SSA to look at the case again. The AC may notify the claimant and other parties of the issues for review. SSA considers all information supplied by the claimant and information already in SSA's files. The claimant may present information personally or be represented by an attorney or another qualified person.
    F. Definitions Of Terms Used In Administrative Review Process
    1. Administrative finality
    Administrative finality refers to a determination or decision being final and binding when rendered unless it is timely appealed or later reopened and revised.
    2. Decision
    A decision is the finding issued by an ALJ or the AC after the claimant's hearing or AC review.
    3. Merits determination or decision
    When used in the context of appeals, merits determination or decision refers to a decision with further administrative and judicial review. See GN 03101.120C, Procedure for New Application in place of Appeal.
    4. Res judicata
    Res judicata is a rule in civil law and administrative policy. Res judicata protects SSA from repeatedly considering the same claim (a claim already issued a determination). For more information on res judicata, see GN 03101.160. Also, see GN 03101.120, Appeals – FO Interview with Dissatisfied Claimant.
    5. Vacate
    To vacate means to set aside the previous action. For example, an ALJ or the AC may vacate a dismissal of a request for review. The AC may also vacate a dismissal on its own motion. See GN 03101.120C, Procedures for New Application in place of Appeal.
    G. References
    GN 03101.010 Time Limit for Filing Administrative Appeals GN 03102.000 Reconsideration (Title II and Entitlement Under Title XVIII) GN 03103.000 Hearings (Title II and Entitlement Under Title XVIII) GN 03104.000 Appeals Council Review (Title II and Entitlement Under Title XVIII) GN 03107.000 Expedited Appeals Process (EAP) (Title II) DI 12005.000 Reconsiderations – Initial Claims DI 12010.000 Hearings Level Review – Initial Claims DI 12026.000 Reconsideration – Disability Hearing for a Medical Cessation/Adverse Medical Reopening Determination – Title II and Title XVI

    Tbird
    The Law of Veterans Benefits 2008 - 2010

    This document aims to identify the most significant decisions in veterans' law between 2008-2010. ‘The two-year period addressed in this article has been a busy time for the United States Court of Appeals for Veterans Claims (“Veterans Court” or “Court”) 2 as well as in veterans’ law generally. A new Secretary of the Department of Veterans Affairs (“Department” or VA) is under a new administration. Congress has been active in passing important legislation and its oversight role. The Veterans Court celebrated ‘the twentieth anniversary of its first convening with a wonderful ceremony in October 2009. And not to be outdone, for only the third time, the Supreme Court of the United States (Supreme Court) decided a case originating in the Veterans Court.”
     
    Michael P. Allen1 
    INTRODUCTION
    The two-year period addressed in this article has been a busy time for the United States Court of Appeals for Veterans Claims (“Veterans Court” or “Court”)2 as well as in veterans’ law generally. There is a new Secretary of the Department of Veterans Affairs (“Department” or VA) in a new administration.3 Congress has been active in the area both in passing important legislation4 and in engaging in its oversight role.5 The Veterans Court celebrated the twentieth anniversary of its first convening with a wonderful ceremony in October 2009. And not to be outdone, for only the third time, the Supreme Court of the United States (Supreme Court) decided a case originating in the Veterans Court.6
    As anyone practicing in the area of veterans’ law knows all too well, it is impossible to discuss everything of importance that has occurred in the period from 2008 through 2010. One reason, of course, is that “importance” may very well be in the eye of the beholder. More significantly, the reality is that both the Veterans Court and the United States Court of Appeals for the Federal Circuit (Federal Circuit) have remained very busy places. In 2008, the Veterans Court received 4,128 new appeals and decided a total of 4,446 cases.7 In 2009, the Veterans Court received 4,725 new appeals and decided a total of 4,379 cases.8 In fiscal year 2008, the Federal Circuit received 170 veterans’ law cases (plus 3 direct regulatory challenges) and adjudicated a total of 107 cases by way of merits panels.9 In fiscal year 2009, the Federal Circuit received 156 appeals in veterans’ law cases (plus 1 direct regulatory challenge) and decided 95 cases by merits panels.10
    My goal here is to identify the most significant decisions in veterans’ law over the past two years. Recognizing the impossibility of addressing every decision rendered by the Veterans Court and the Federal Circuit during this period, I was able to 
    capture what most practitioners would agree are the major matters on which these two courts have opined. In this regard, I read and reviewed every precedential decision of the Veterans Court from February 1, 2008 through April 30, 2010 and all Federal Circuit decisions from this period (both precedential and non-precedential) in the area of veterans’ law. Finally, I reviewed decisions from the Supreme Court having applicability in the veterans’ law area.11
    Based on my review of these sources, I grouped the significant developments over the past two years into eleven categories: issues concerning (1) appellate timing (both within the Department and to the Veterans Court) as well as related jurisdictional issues; (2) what constitutes a “claim” under relevant law; (3) the Department’s duties of notice to claimants;12 (4) the Department’s duties to assist claimants; (5) medical examinations and evidence; (6) ratings decisions; (7) clear and unmistakable error along with matters concerning the duty to sympathetically read veterans’ pleadings; (8) attorneys’ fees; (9) claimants’ due process rights; (10) the general structure of the system for the award and review of veterans’ benefits; and (11) certain miscellaneous, but independently significant, matters. In Part I below, I address each of these categories in turn.13
    After addressing the specific areas in which there have been significant developments over the past two years, I turn in Part II to distilling the common themes from the various substantive areas I addressed in Part I14 and highlighting some areas in which I suspect there will be development over the next two years.15
    Read the complete document here

    Tbird
    Here are some of the top posts for Diabetes Service-Connected.
    According to the VBA Annual Report Fiscal Year 2022. Diabetes is the third most claimed disability body system. See the image below:
    The most prevalent SC disabilities of all compensation recipients

    Posts to get you started.
    Secondary diabetes
    laylay posted a question in VA Disability Claims Research
    diabetes secondary to service connected breast cancer treatment - any knowledge of this?  September 16, 2023    1 reply Diabetes type II caused by medications
    Carl the Engineer posted a question in VA Disability Claims Research
    ...In the spring I was diagnosed with Diabetes type II. It is under control, however I take medication (pills) two times a day. I believe if connected, in its current state, it would rate 20%. I found documentation from civilian publications and from the the VA itself stating that both of...  October 18, 2022    11 replies Expressed or Inferred Diabetes Claim from AO, Nehmer class
    JJM posted a question in VA Disability Claims Research
    ... diabetes mellitus, diabetic peripheral neuropathy, etc with an effective date of 12/20/2017. The VA conceded on 3/25/2020 an effective date of 8/2/2001 for the CAD and prostate cancer, but denied an earlier effective date for diabetes and neuropathy. The VA has conceded a first diagnosis date for...  March 10, 2021    11 replies Read More Here
     

    Tbird
    VA disability compensation in the US dates back to the Civil War. During the War, legislation was passed to provide disability compensation to Union soldiers injured due to their military service.  The history of VA disability compensation in the United States dates back to the Civil War. During the Civil War, Congress enacted legislation to provide disability compensation to Union soldiers who were injured during their military service. This legislation marked the beginning of a long history of providing disability compensation to veterans in the United States.
    In 1888, Congress passed the Dependent and Disability Pension Act, which provided pensions to disabled veterans and their dependents. This act marked the beginning of a comprehensive system of disability compensation for veterans in the United States.
    The modern system of VA disability compensation in the United States was established after World War I. In 1924, Congress passed the World War Adjusted Compensation Act, which provided disability compensation to veterans of World War I based on the extent of their disabilities.
    In 1930, Congress passed the Veterans Administration Act, which created the Veterans Administration (now known as the Department of Veterans Affairs). The act also established a comprehensive system of disability compensation for veterans, including a schedule of benefits based on the severity of disabilities.
    Since then, the VA disability compensation system has evolved to include a wide range of benefits, including compensation for disabilities that are not directly related to military service, such as disabilities resulting from exposure to Agent Orange during the Vietnam War. The VA disability compensation system also provides benefits for disabilities that are service-connected, meaning that the disability was caused or made worse by military service.
    In conclusion, the history of VA disability compensation in the United States is a long and evolving one, dating back to the Civil War and reflecting a commitment to providing support to disabled veterans and their families.
    Read a bit more below:
     
    A Long Road: The History of U.S. Veterans Disability Compensation
    The United States has a long history of recognizing the sacrifices of veterans by providing financial assistance for service-related disabilities. This system, however, has evolved significantly over time, reflecting changing societal views and the nature of warfare itself.
    Early Efforts: Colonial Roots and Revolutionary War
    The concept of veterans' benefits dates back to the earliest days of the American colonies. In 1636, the Plymouth Colony offered support to disabled veterans of the Pequot War, demonstrating a developing recognition of the need to care for those injured in service. The Continental Congress, during the Revolutionary War, took a more formal approach in 1776 by promising pensions to officers and soldiers who became disabled while fighting for independence. Land grants were also offered, further acknowledging the debt owed to those who bore the physical consequences of war.
    The Pension System and the Civil War
    Following the War of 1812, the federal government established a formal veteran pension system. The 1818 Service Pension Law granted fixed pensions to veterans of the Revolutionary War who were in need. This system expanded significantly after the Civil War, incorporating the idea that disabilities acquired during service, not just combat injuries, could qualify for compensation. However, the sheer number of veterans and the bureaucratic nature of the Pension Bureau led to a surge in applications and accusations of fraud. By the late 19th century, pension costs consumed a substantial portion of the federal budget.
    20th Century: Modernization and Expansion
    World War I marked a turning point in veterans' disability compensation. Recognizing the scale of the conflict and the potential for long-term disabilities, Congress established a new system in 1917. This included programs for disability compensation, insurance, and vocational rehabilitation. However, the post-war period saw the administration of these benefits fragmented across three agencies, leading to confusion and inefficiency.
    The first significant consolidation came in 1921 with the creation of the Veterans Bureau, unifying programs for World War I veterans. This move streamlined administration and laid the groundwork for further advancements. The 20th century also witnessed a broadening of eligibility criteria. Previously, disabilities had to be demonstrably connected to combat service. However, the understanding of mental health conditions like shell shock, later known as PTSD, led to their inclusion in the compensation system.
    World War II again underscored the need for a robust system. In 1944, The Servicemen's Readjustment Act, or the GI Bill, provided comprehensive benefits, including disability compensation. The system continued to evolve throughout the Cold War and the Vietnam War, with a focus on improving the application process.
    The 21st Century and Beyond
    The wars in Afghanistan and Iraq presented new challenges. Veterans returning with injuries like traumatic brain injuries (TBIs) and post-traumatic stress disorder (PTSD) often face difficulties proving service connection for their disabilities. The VA has made significant strides in recent years to address these issues, expanding access to mental health care and streamlining the claims process.
    Challenges and Looking Ahead
    Despite advancements, challenges remain. The backlog of claims continues to be a source of frustration for veterans, and ensuring adequate funding for these programs is an ongoing concern. Additionally, the nature of modern warfare, with an increased reliance on technology and Special Operations Forces, presents new questions about disability compensation.
    As the United States continues to engage in military operations around the world, the need for a robust and responsive system of veterans' disability compensation remains paramount. By acknowledging the long-term impact of service and adapting to the changing needs of veterans, the nation can fulfill its commitment to those who have served.

    Tbird
    The PACT Act and your VA benefits. 
    The PACT Act is a law that aims to expand VA health care and benefits for veterans who have been exposed to burn pits, Agent Orange, and other harmful substances. This law helps the VA to provide several generations of veterans and their survivors with the care and benefits they have earned and rightly deserve. As of March 5, 2024, the VA will be expanding VA health care to millions of veterans years earlier than what was initially projected by the PACT Act. 
    If you need further assistance, call 800-698-2411 (TTY: 711). Additionally, if you are experiencing any disabilities related to the PACT Act, you can file a claim for PACT Act-related disability compensation or apply for VA health care now.
    Below is from VA.gov on types of exposure and presumptive conditions.
    Types of Exposure
    Agent Orange
    If you served in the Republic of Vietnam or in or near the Korean Demilitarized Zone (DMZ) during the Vietnam Era—or in certain related jobs—you may have had contact with Agent Orange, an herbicide used to clear plants and trees during the war.
    Learn about compensation based on Agent Orange exposure
    Asbestos
    If you worked in certain military jobs, you may have had contact with asbestos (toxic fibers once used in many buildings and products).
    Learn about compensation based on asbestos exposure
    Birth defects like spina bifida
    If you served in the Republic of Vietnam, in Thailand, or in or near the DMZ during the Vietnam Era—and your child has spina bifida or certain other birth defects—your child may be eligible for disability benefits.
    Learn about compensation based on birth defects like spina bifida
    Burn pits and other specific environmental hazards
    If you served in Iraq, Afghanistan, or certain other areas, you may have had contact with toxic chemicals in the air, water, or soil.
    Learn about compensation based on burn pits and other specific environmental hazards.
    Contact with mustard gas or lewisite.
    If you served at the German bombing of Bari, Italy, in World War II or worked in certain other jobs, you may have had contact with mustard gas.
    Learn about compensation based on mustard gas or lewisite exposure
    Contaminated drinking water at Camp Lejeune
    If you served at Camp Lejeune or MCAS New River between August 1953 and December 1987, you may be at risk of certain illnesses believed to be caused by contaminants found in the drinking water during that time.
    Learn about compensation based on contaminated drinking water at Camp Lejeune.
    Gulf War Illnesses in Southwest Asia
    If you served in the Southwest Asia theater of operations, you may be at risk of certain illnesses or other conditions linked to this region.
    Learn about compensation based on Gulf War illnesses in Southwest Asia
    Gulf War Illnesses in Afghanistan
    If you served in Afghanistan, you may be at risk of certain illnesses or other conditions linked to this region.
    Learn about compensation based on Gulf War illnesses in Afghanistan
    Project 112/SHAD
    If you were part of warfare testing for Project 112 or Project Shipboard Hazard and Defense (SHAD) from 1962 to 1974, you may be at risk of illnesses believed to be caused by chemical testing.
    Learn about compensation based on Project 112/SHAD
    Radiation exposure
    If you served in the post-WWII occupation of Hiroshima or Nagasaki, were imprisoned in Japan, worked with or near nuclear weapons testing, or served at a gaseous diffusion plant or in certain other jobs, you may be at risk of illnesses believed to be caused by radiation.
    Learn about compensation based on radiation exposure

    Tbird
    Hill and Ponton: The 2024 Guide to 10% VA Disability Benefits
    Hill and Ponton have a very interesting post on 10% VA Disability. According to the Veterans Benefits Administration FY 2021 Report, 10% is the most common service-connected percentage awarded. See the image below, and then read H&P’s post.
    Compensation for a 10% VA Disability Rating Dependent benefits at the 10% VA Disability Rating Prime benefits of a 10% VA Disability Rating Social Security Considerations with a 10% VA Disability Rating The path to Extraschedular TDIU for 10% rated veterans How to increase your VA Disability Rating from 10% Read Full Article
    According to VA: Here are the Top 10 most popular Veteran resources.
     
    Veterans and Gold Star Families get free lifetime passes to national parks, wildlife refuges, and other public lands.
    On Veterans Day 2022, the U.S. National Park Service unveiled a lifetime pass providing free entrance to national parks for Veterans and their families. The pass gives them free access to about 2,000 public locations spread out across more than 400 million acres of public lands.
    Veteran discounts are available year-round.
    This is a comprehensive list of Veteran and military discounts that are good all year and are updated based on additional awareness.
    Record pay increase for Veterans receiving VA compensation benefits
    VA announced compensation payment rate increases based on the latest cost-of-living adjustment (COLA). Beginning on Jan. 1, 2023, Veterans and beneficiaries who receive VA compensation benefits began seeing an 8.7% increase in their monthly compensation benefits—the largest increase in over 30 years.
    VALife insurance program is coming in January 2023 for veterans with service connection.
    In January 2023, VA launched a new life insurance program called Veterans Affairs Life Insurance (VALife). The program provides guaranteed acceptance of whole life insurance coverage to Veterans 80 and under with any level of service-connected disability.
    Benefits and resources available to Veterans of OIF, Southwest Asia theater of operations
    VA announced that Veterans who served in Operation Iraqi Freedom, Southwest Asia, and other locations may be entitled to compensation for medical conditions presumed to be related to exposure to fine particulate matter. For more information on new presumptive conditions, visit the Airborne Hazards and Burn Pit Exposures – Public Health page.
    Health application aims to transform Veteran heart health
    VHA Innovation Ecosystem, in collaboration with Evidation, is encouraging Veterans to enroll in Heart Health. This free application-based program helps educate Veterans about their heart health and chronic conditions using their smartphones and wearable devices. Veterans can track relevant health data, including activity, mood, symptom, and weight data.
     

    Tbird
    Always check on VA.gov for the latest.
    If you think your life or health is in danger, call 911 or go to the nearest emergency department. You don’t need to check with us first.
    But if you go to a non-VA facility—even one that’s in the VA's community care network—you must follow certain rules so that the VA can cover the cost of your care. Keep reading on this page to learn what you need to know if you go to a non-VA facility for emergency care.
    Find VA and in-network emergency care. What to know if you go to a non-VA facility for emergency care
    The facility must be an EMERGENCY DEPARTMENT
    VA will only cover the cost of emergency care at an emergency department. An emergency department is a facility that has the staff and equipment to provide emergency care (like a hospital or free-standing emergency department).
    Urgent care facilities don’t qualify as emergency departments. If you’re not sure what type of facility you should go to, we can help.
    Learn more about choosing between emergency and urgent care
    The VA must be notified of your care within 72 hours
    Ask the provider to notify us right away in either of these ways:
    Through our VA emergency care reporting portal, or By calling us at 844-724-7842 (TTY: 711) We must get the notification within 72 hours of when your emergency care starts. We prefer that the provider notify us. But if they don’t, you or someone acting on your behalf can notify us instead.
    We can only cover emergency care when you meet certain requirements
    Keep reading to learn more about eligibility requirements for emergency mental health care and other types of emergency care.
    Emergency care eligibility requirements
    Eligibility for emergency mental health care
    In most cases, we will provide or cover the cost of your emergency mental health care and up to 90 days of related services—even if you’re not enrolled in VA health care.
    If a health care provider or a trained crisis responder determines you’re at risk of immediate self-harm, we can provide or cover the cost of your care if you meet at least one of these requirements:
    You were sexually assaulted, battered, or harassed while serving in the Armed Forces, or You served on active duty for more than 24 months and didn’t get a dishonorable discharge, or You served more than 100 days under a combat exclusion or in support of a contingency operation (including as a member of the Reserve) and didn’t get a dishonorable discharge. You meet this requirement if you served directly or if you operated an unmanned aerial vehicle from another location. If you go to a non-VA emergency department for help, tell the staff you’re a Veteran. Ask them to contact us right away.
    Eligibility for all other emergency care
    General eligibility requirements
    By law, we can only cover the cost of your care at a non-VA emergency department if you meet all of these requirements:
    You’re enrolled in VA health care or you have a qualifying exemption from enrollment, and A VA health care facility or other federal facility that could provide the needed care wasn’t “feasibly available” (meaning it was too far away for you to get there fast enough to get the emergency care you needed), and A person with an average knowledge of health and medicine (called a “prudent layperson”) would reasonably believe that a delay in seeking care would have put your life or health in danger and You meet the VA's other requirements based on your specific situation—including the time limit for us to receive your claim. Keep reading to learn more about requirements for different situations. Note: We only cover non-VA emergency care until we can safely transfer you to a VA or other federal facility. The only time this rule doesn’t apply is if the community provider contacts us and we can’t accept your transfer.
    More emergency care coverage requirements
    In addition to the general eligibility requirements, you must also meet these other requirements based on your specific situation.
    What to do if you’re charged for emergency care
    If you get a bill for emergency care at a non-VA facility and you think we should cover the cost, we can help. Call us at 877-881-7618 (TTY: 711). We’re here Monday through Friday, 8:00 a.m. to 8:00 p.m. ET.
    We’ll go over the charges with you and help figure out who should cover the cost of your care. We can also help resolve billing issues with community providers.
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    Tbird
    The battle of the Ia Drang Valley was a series of engagements between the 1st Cavalry Division and the B-3 Front, NVA. Many considered it to be the US Army's 1st battle in Vietnam.
     
    Battle of Ia Drang Valley by LTC Kenneth R Pierce from Military Review, Vol LXIX, 1-89
     
    Military Review is published monthly by the US Army Command and General Staff College. For subscription info, contact MR, USACGSC, Ft Leavenworth, KS 60627
    The battle of the Ia Drang Valley [IDV] was actually of series of engagements between the US 1st Cavalry Division (Airmobile) and the B-3 Front, North Vietnamese Army (NVA) from 10-18 to 11-24-65, Many considered it to be the US Army’s 1st battle in Vietnam. It was certainly the 1st battle between a US division operating under a field force headquarters and 3 NVA regiments operating under a front headquarters. It may also have been the last battle between NVA and US forces of equivalent size.
    The objective of this article is not to rehash all the details of the battle of the IDV but to conduct battle analysis using the historic methodology. The battle analysis methodology is a systemic approach to research that uses of format which includes: defining the subject; reviewing the setting; examining the tactical situation; and assessing the significance of the action. It is ultimately in the assessment phase that the analysis takes place, and the analysis is expected to answer specific questions. In this particular analysis the questions center on the tenets of Air land Battle doctrine as defined in the 1986 edition of US Army Field Manual (FM) 100-5, “Operations”. Based on the tenets of Air Land Battle, I will teach some conclusions about the battle of the IDV and provide some lessons learned.
    Having defined the subject, the Battle of the IDV, the analysis must next examine the battlefield itself and also develop some description or comparison of opposing forces.
    Starting with the battlefield, the IDV is the valley through which the river (Ia) Drang flows and is drained by the Ia Drang, Ia Puck, and an extensive network of small streams flowing west and southwest across the Cambodian border into the Mekong River. The battlefield area covered 1,500 square miles of what appeared to be flat rolling terrain dominated by the Chu Pong Massif, a rugged mountain 730 meters above sea level, in the southwestern corner of the area of ops (TO), straddling the Cambodian-Vietnamese border. The only passable roads traversed the eastern and northern fringes of the TO. Much of the valley was covered with thick jungle vegetation and trees as high as 100 feet. Even the “open” areas had shrubs and trees over 6 feet high. The sudden mists offered of sinister aura, where daily heat and nighttime cold kept you perpetually and increasingly on edge. The area was eerie – imagine the “Valley of Death,” and you picture the Ia Drang.
    In this area, particularly at the base of the Chu Pong Massif, the NVA had built a base camp sanctuary that was unknown to US forces and untouched by Army of the Republic of Vietnam (ARVN ) forces. The primary NVA forces operating in this area were the B-3 Front commanded by General Chu Huy Man, with 3 regular regiments (the 32d, 33d, and 66th) supported by local VC battalions as well as front-level mortar and anti-aircraft units. Each maneuver regiment numbered about 2,200 frontline infantrymen and sappers. Their primary weapon was the Soviet AK47 assault rifle.
    The 32d and 33d regiments were vet fighters against the ARVN and Man was of vet of the 1st Indochinese War against the French. These units had been in the valley since early September, rehearsing, developing ambush sites, and pre-positioning and stockpiling ammunition, medical supplies and food. Their tactics were quite simple, Their 1st ploy was to “lute and ambush.” They would attack of small outpost or ARVN force and maintain pressure on it with one unit, while another unit waited in well-prepared positions to ambush the relieving force. Their other tactic was called “hugging”; that was to get as close to the opposing force as possible and rely on close-in, almost hand-to-hand fighting to negate their opposing force’s firepower advantage. They generally liked to fight at night and rehearsed at night before conducting ops. They always planned and rehearsed an organized withdrawal and would counterattack or leave stay-behind forces to permit an orderly withdrawal. The troops were highly disciplined, with excellent morale and esprit de corps, well fed, well supplied, and in excellent physical condition. Although Man expected to fight tanks with his light infantry, his forces had not fought Americans.
    The Americans they would soon meet were in the US 1st Cavalry Division (Airmobile), commanded by Major General Harry Kinnard. The 1st Cavalry Division had been training for 2 years as the 11th Air Assault Division at Fort Benning under Kinnard’s direction. This new Army division was well trained and equipped upon activation as the 1st Cavalry Division (Airmobile) on 7-1-65. it arrived in Vietnam in increments during August and September 1965. The division had 3 brigade headquarters, 8 infantry battalions, an air cavalry squadron, an aerial rocket artillery battery, 3 direct support artillery battalions, an aviation company, and the normal combat support and combat service support associated with the Reorganization Objective Army division. The division authorized 10,000 troops, 435 helicopters, basic infantry weapons (M-16 rifle, M60 machine gun, and M79 grenade launcher), and state-of-the-art communications equipment. This was clearly the US Army’s “high tech” division of the 60s.
    The 1st Cavalry had some problems when ordered to deploy; it had 2,700 men not eligible for deployment, The division lost hundreds of pilots, crew chiefs, and mechanics who could not easily be replaced in 1965. Additionally, the troops were issued the M-16 rifle only 10 days prior to departure and had a hurried familiarization with this new weapon. After arriving in the country, the division was struck with of peculiar strain of malaria for which there was no known treatment at the time, costing 1,000 additional losses. And although well-trained in airmobile tactics, the division had not trained for jungle-type warfare. However, by 9-28-65, the division was in its base camp at An Khe, less than 90 days after activation.
    The initial mission of B-3 Front at the operational level was to cut South Vietnam in half. Operationally, it would defeat South Vietnamese and US forces that were in the way. The 1st please of the plan was to put pressure on of Special Forces camp with 1 regiment; then to defeat the anticipated relief forces in detail, expecting them to be employed piecemeal. This 1st phase failed miserably when an ARVN relief column was employed in force with tanks and armored personnel carriers, fully supported by US air and artillery, the “luring” force (33d Regiment) was seriously reduced by tenacious fighting on the part of the dependents coupled with American close air support. The “ambushing” force (32d Regiment) was also defeated by the strong relief column. Man was forced to withdraw and to determine how to reap some success (at least psychologically) from this initial failure.
    Since there were insufficient ARVN forces to exploit their success, General William Westmoreland made the extremely risky decision to employ the 1st Cavalry Division on of classic exploitation and pursuit mission against what appeared to be 2 battered NVA regiments withdrawing to Cambodia. The 1st Cavalry’s mission was to search and destroy – find the 32d and 33d regiments and kill or capture as many as possible before they reached any sanctuary. The stage was set for the US Army’s first battle of the Vietnam War. It is also here that we can begin the analysis.
    Man withdrew to his well-developed sanctuary in the Chu Pong Massif. Here he regrouped, reorganized, re-equipped, and rested his troops, while he waited for the arrival of the fresh 66th Regiment and additional artillery and anti-aircraft units, Later assessment indicated that his new mission was relatively simple. 1st he was to destroy the much more lucrative Plei Me camp – now reinforced with more than 1,000 ARVN troops and many US advisers. Then he could return to North Vietnam a victor, with a better feel for how the Americans would support his war. In this planning phase, Man’s thought process can be examined in relation to the tenets of Air land Battle.
    initiate. “Setting or changing the terms of battle by action.” Certainly, Man still had an offensive spirit – he would attack. He was setting the terms of the battle and was not going to allow the defenders of Plei Me the opportunity to recover. He knew he was taking great risks to learn more about how Americans would fight in future ops. He was also considering the political and psychological implications requiring some type of victory – no matter how limited. He knew that he was capable of exploiting any breakthrough at the camp and was confident that his subordinate regimental commanders clearly understood his intent.
    Agility. “The ability to act faster than the enemy.” It took the ARVN 4 days to relieve Plei Me in the earlier engagement. Man felt he could strike and withdraw much faster than any sizable relief force could be mounted. He was now concentrating 3 regiments against a very vulnerable and isolated camp. By training and disposition, his forces were extremely agile, and he felt he could “read” the battlefield and exploit success quickly.
    Depth. “Extension of ops in space, time, and resources.” Clearly, Man had prepared his battleground. He knew how to maneuver to Plei Me and his withdrawal routes were well established. He had effectively cached his resources and he had more arriving with the 66th Regiment. His forces and resources were concentrated to sustain the momentum he needed to wipe out Plei Me. He would provide for air protection with additional anti-aircraft units and by his “hugging” tactical. He viewed his rear area in the Chu Pong Massif as well concealed and well protected. Additionally, well-established sanctuaries were available in Cambodia and his lines of communication were generally safe.
    Synchronization. “The arrangement of battlefield activities in time, space, and purpose to produce maximum relative combat power at the decisive point.” NVA tactical doctrine in the attack of fortified position lent itself ideally to synchronization. [Man’s] felt that he could determine the time of the attack. He would begin with probing tactics, then increase the pressure until he found of a weak link in the defense. He would then pour through that weak point, overrun the camp, and kill or capture everyone in it. He was prepared to combat air power with the arrival of additional front-level assets under his operational control. His intent was absolutely clear to his subordinate commanders, and his units had carefully rehearsed such operations. Clearly, there was unambiguous unity of purpose throughout his force. Unfortunately, Man made 1 critical error – he did not know the capabilities or intention of his enemy. In fact, he did not know that his opponent would be Kinnard, who had an entirely different mission than defense.
    After searching due west of the Plei Me camp and not finding the elusive NVA forces, Kinnard decided to shift his ops to the southwest – right into the Chu Pong Massif. He had replaced his 3d Brigade with the 1st Brigade and was hoping to find the battered remnants of the 2 NVA regiments, licking their wounds and withdrawing into Cambodia. In this initial phase, we can examine Kinnard’s thought process in relation to the tenets of Air Land Battle.
    Initiate. Clearly, Kinnard intended to set the terms of the battle, He was on the offensive and felt he could destroy the enemy with his superb division. If he could find the enemy forces, he had the mobility and firepower to fix and destroy them, He was taking great risk and knew that the unit which made initial contact would be seriously outnumbered, but felt he could reinforce with fire almost immediately and then pile on troops before the enemy could react.
    Agility. The helicopter gave Kinnard the ability to act faster than the enemy. He could shift forces and combat power at almost mind-boggling speed. He could put both field artillery and aerial rocket artillery with great accuracy anywhere on almost of moment’s notice. He could reinforce troops faster than anyone ever experienced in the history of modern warfare. He had the communication capability and the troops trained in calls for fire. He could quickly concentrate on this weak and battered enemy and exploit his vulnerabilities. Cavalry tactics were such that they considered “friction’! the accumulation of chance errors, unexpected difficulties, and the confusion of battle. Kinnard, by nature, disposition, and training, knew that he had to continuously “read the battlefield,” decide quickly and act without hesitation.
    Depth. Here again, the helicopter and the cavalry’s training in its use naturally extended ops in space, time, and resources. The helicopter gave him an extended range of vision for reconnaissance, allowed him to provide accurate aerial rocket artillery, adjust fire from the air, reposition his field artillery, re-supply his troops, and reinforce with maneuver forces almost anywhere on the battlefield. His plan called for fixing the enemy and forcing commitment, as well as interdicting uncommitted forces, en route to Cambodia. His rear areas were relatively safe, but he still provided an infantry battalion to secure his artillery and his forward command post. He had airstrips built so that he could be re-supplied from Saigon by the Air Force to his base at An Khe, and he also maintained sufficient helicopter lift assigned to move those supplies to the frontline troops. He was mentally prepared for bold and decisive action, and he had personally trained his handpicked brigade and battalion commanders with these same qualities.
    Synchronization. 2 years of training together with all the modern technology had taught the cavalry how to arrange activities in time, space and purpose. Kinnard had the forces and combat power to produce maximum results at the decisive point. Synchronization for the cavalry did not depend on explicit coordination. Their training and communications capability were such that synchronization could take place during heavy conflict. Additionally, the commander’s intent was clear – find the NVA regiments and destroy them. Clearly, the concept itself of searching with a battalion – piling on of brigade and supporting at the decisive time and place with the entire division, field force, and Army fire support was an economy-of-force type operation.
    It can be argued that in planning, each opposing commander was well within the umbrella of the tenets of Air land Battle. There was no apparent violation or misuse of initiative, agility, depth, and synchronization. However, as the battle develops, some things become very evident. Man did not expect to fight the battle in his own sanctuary – nor did he expect to fight an American division. Additionally, he knew nothing of how the of Americans would fight. On Kinnard’s part, he expected to be facing two beaten-up NVA regiments conducting a withdrawal. He did not expect to face more than 4,200 frontline troops, supported by mortars and anti-aircraft batteries, well supplied and not withdrawing but moving to attack. It is at this stage that the “fog of war” reigns supreme. Here the commander with the best agility gains the initiative. It is the commander who can fight his fight – that is, setting the terms of battle and not allowing the enemy to recover – who will be the winner. Both Man and Kinnard exercised great mental agility as they attempted to gain the initiative. As the battle unfolded, the unexpected took over.
    1st, 1 battalion-size unit of the division, 1st Squadron, 7th Cavalry (17) airlifted in landing zone (LZ) X-Ray and made almost immediate contact with advance elements of the NVA force moving on Plei Me. Lt Col Harold G. Moore (the squadron commander) at 1st thought this was of stay-behind force of about 1 battalion, covering the enemy withdrawal. Man immediately saw an opportunity to gain an immense victory by quickly annihilating an American unit that he significantly outnumbered, with the additional possibility of defeating in detail any relieving forces that would have to arrive piecemeal. In this he exercised great agility and took the initiative by accepting risk, the risk due to the fact that his entire force, especially his front-level mortar and anti-aircraft units, were not in of position to support the attack on X-Ray.
    The brigade commander, Col Thomas Brown, and Kinnard quickly sensed that this was much more than a battered stay-behind force and recognized that the enemy’s intent was not to delay but to annihilate the 1-7th Cavalry. All available firepower was quickly reoriented to X-Ray and available forces began moving air and ground assets to support that fight. The ability of this small force to hold, and the tremendous and immediate firepower brought to beat was of a shock to Man. The agility of Kinnard’s thought process and the agility of the cavalry organization itself quickly gave him the initiative. He reinforced 1-7 Cavalry with 2-7 Cavalry and elements of 1-5 Cavalry. The enemy had seen enough and began relocating. Kinnard ordered 2-7 Cavalry to pursue. The pursuing unit fought another battle that took place at LZ Albany as Man was attempting to cover his withdrawal. The fight at LZ Albany was bloody, as the United States suffered 151 dead and 121 wounded, while the enemy lost about 450 killed. Kinnard then ordered the 2d Brigade to relieve the 3d Brigade and to continue to pursue. Over the next few days, the 3d Brigade mopped up of few battered remnants of the 32d, 33d, and 66th regiments as they were withdrawing into Cambodia Although Kinnard wished to continue the pursuit, he was ordered to hold. By 11-24 -65, the battles of the Ia Drang were over. The 1st Cavalry killed as many as 3,000 NVA regulars, with an unknown number of wounded, and, in fact, decimated the NVA force.
    Clearly, Kinnard used the agility of the cavalry and his own ability to synchronize both combat power and logistic support (550 tons of supply of day and 50,000 gallons of aviation fuel) to seize and maintain the initiative on the battlefield. Additionally, he never had to commit more than 1 brigade at a time, thus exercising wisely the economy of his force. The agility of his forces and his ability to synchronize combat power allowed his units to fight outnumbered at least 7-to-1 overall and much greater at both X-Ray and Albany and win.
    Green, untested American soldiers fought outnumbered against what Bernard Fall called “the best light infantry in the world,” and won. The mental agility of Kinnard, the ability to synchronize combat power, and the agility in the organization of the cavalry gave him the initiative and allowed him to fight his battle on his terms and win. He searched and he destroyed – and that was his mission. The training, discipline, and leadership of both the 1st Cavalry Division under Kinnard and the NVA forces under Man had been outstanding. But in the final analysis, organization and air mobility gave Kinnard the agility necessary to wrest the initiative from Man. And it was the initiative that ultimately made the difference.
    What then do we learn from this 1st battle in Vietnam 1st and foremost, of commander must be capable of gaining and maintaining the initiative, for without it he cannot win. To gain the initiative, the commander must have both the mental and organizational agility to gain an advantage in relative combat power in depth, (time, space and resources), at the decisive point. In the battle of the Ia Drang, it was the great agility provided by the 1st Cavalry’s organization that gave them the edge Kinnard needed.
    It is also evident from of study of this battle that the tenets of Air land Battle doctrine are clearly interdependent, with gaining and maintaining the initiative clearly the most important tenet. An edge or advantage in 1 or all of the other tenets may give you that initiative as did the 1st Cavalry’s agility and ability to synchronize its actions. Man had the ability to synchronize his combat power and he had great depth in time, space and resources. He was willing to take risks and had great mental agility. The physical agility advantage, however, went to the cavalry and that was enough to gain the initiative.
    We also learned that technology can provide just the edge in agility that is needed. However, technology is not enough. Commanders at every level must be confident and trained to know how and when to apply that technology. If Kinnard had not been absolutely confident in his ability to rapidly reinforce with both firepower and troops, his actions would have been closer to stupidity than acceptable risk. Such was the case with Man, who was ignorant of the capabilities of the American forces. His willingness to take risks without knowing those capabilities was, in fact, foolish and cost him 3 1st-rate regiments. Thus, 1 suggests that while initiative, agility, depth, and synchronization characterize successful ops, there are other key operations requirements. FM 100-5 calls them “Air Land Battle Imperatives.” The imperative that seriously affected Man is stated as “Concentrate combat power against enemy vulnerabilities.”
    FM 100-5 further explains, “To know what his vulnerabilities are, the commanders must study the enemy, know and take into account his strengths, find his inherent vulnerabilities, and know how to create vulnerabilities which can be exploited to decisive effect.” This was Man’s great failure and can be considered the cause of his defeat.
    This article illustrates the analysis of a battle within the framework of the tenets of Air land Battle. Of series of facts such as the composition of the opposing force, geography, and environment, missions of each force, dates, and times, were examined using the FM 101-5 definitions of the tenets of Air Land Battle. This method then allowed for some conclusions to be drawn. Ultimately, the question of why the US forces won and NVA forces lost was answered to of certain degree. Such analyses, done in even greater depth, offer the potential to answer many more questions. The point here is that the professional soldier can conduct a continuous study of current doctrine by reading and analyzing battles of the past, thus continuously reinforcing the understanding of current doctrine. My conclusions from the study of this battle find that initiative is the critical tenet of Air Land Battle, and that agility, depth and synchronization are the means of gaining the initiative. It is my opinion that the study of other battles, using the analysis method, will also point to initiative as the most vital tenet of Air land Battle.


    Tbird
    After 26 years, I gave HadIt.com to a non-profit.
    HadIt.com is not going anywhere. As of February 2023, I gifted the site to a non-profit that will take over its continued operation. The new owner is Tommy R. Smith, and his member's name is Rattler.
    Brothers and Sisters –
    The time has come for me to transition from HadIt.com. Creating and running the site for over 26 years has been my life’s work and passion. I treasure my interactions with each of you and take great joy in knowing how many veterans HadIt.com has helped.
    HadIt.com is not going anywhere. As of February 2023, I have gifted HadIt.com to a non-profit that will take over the continued running of the site in the future. The nonprofit was created for this purpose.
    Our member Rattler will lead as I withdraw from the day-to-day operations. Any decisions, membership issues, additions, refinements, etc., should be directed to him.
    I will post on the forum items I come across that would be informative to the membership and continue to post to Diary of A Mad Sailor, where I am writing my memoirs.
    Here is a bit of history on how we got here:
    What Happened
    In 2022, someone started attacking HadIt.com’s ranking in the search engines and me personally.
    Why Did This Happen
    Who can read the minds of miscreants and psychologically damaged people? Not me.
    I have come across a fair number of psychologically damaged people in my life. It appears that the attack on the site was caused by one of those types.
    Remember that these psychologically impaired individuals tend to project their shortcomings on the object of their ire. That being said, I have proven my forthrightness and stability by creating and maintaining hadit.com for over 25 years, not to brag about my good deeds, never sitting behind a paywall, etc., just been there for you doing it day in and day out.
    Building a website with nothing but an idea, a PTSD diagnosis, and a dream was not an easy task. In 1997, no sites were doing what I saw as a need in the veterans’ community.
    It was never a smooth ride, but it was always interesting. I learned a lot about VA Claims and shared that information with you. I created a community where you could share information and support one another.
    HadIt.com has done that for over 27 years. The site has always differed from many others in assisting veterans in the VA claims process.
    There are many competitors now, and they all do their own thing. Everyone does things differently, and wherever you can get help is excellent. Some sites are author-centric. At HadIt.com, you were the hero. It was never about me. The average veteran was making a difference in another veteran’s life. That is the story of HadIt.com Veteran to Veteran.
    This last year saw an unprecedented attack on the site.
    This attack is designed to drive a site out of business. Generally speaking, it is challenging to discover who initiated the attack, though we may have had some luck through a fluke.
    Personal note. The person who did this knows I am a disabled veteran with severe PTSD and Major Depression. The site was my life’s work, and for whatever reason, they did this without concern for my well-being or the thousands of veterans the site helps. So let that sink in.
    To the person who did this – That which doesn’t kill me only makes me stronger.
    HadIt.com continues…

    Tbird
    VA's COLA is always the same as SSA's COLA.
    The maximum amount of earnings subject to Social Security tax (taxable maximum) will increase to $168,600.
    The earnings limit for workers who are younger than the “full” retirement age will increase to $22,320. (We deduct $1 from benefits for each $2 earned over $22,320.)
    The earnings limit for people reaching their “full” retirement age in 2024 will increase to $59,520. (We deduct $1 from benefits for each $3 earned over $59,520 until the month the worker turns “full” retirement age.)
    There is no limit on earnings for workers who are “full” retirement age or older for the entire year.

    Medicare Information
    Information about Medicare changes will be available at www.medicare.gov. For Social Security beneficiaries receiving Medicare, their New Year benefit amount will be available in December through the mailed COLA notice and my Social Security’s Message Center.
    Your COLA Notice
    In December, Social Security COLA notices will be available online to most beneficiaries in the Message Center of their My Social Security account.
    This is a secure, convenient way to receive COLA notices online and save the message for later. You can also opt out of receiving notices by mail that are available online. Be sure to choose your preferred way to receive courtesy notifications so you won’t miss your secure, convenient online COLA notice.
    Remember, SSA services are free of charge. No government agency or reputable company will solicit your personal information or request advanced fees for services through wire transfers or gift cards. Avoid falling victim to fraudulent calls and internet “phishing” schemes by not revealing personal information, selecting malicious links, or opening malicious attachments. You can learn more about how SSA protects your personal information and my Social Security account.
    What Is The Cost of Living Allowance (COLA)?
    Social Security benefits, Supplemental Security Income (SSI), and VA Disability Compensation payments are adjusted to reflect any increase in the Cost of Living as measured by the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W). The Bureau of Labor Statistics (BLS) prepares this index. The cost-of-living adjustment (COLA) aims to ensure that inflation does not erode the purchasing power of Social Security benefits, SSI payments, and VA Disability Compensation.
    The COLA is determined on a yearly basis. The average CPI-W for the third calendar quarter of the most recent year a COLA was determined and compared to the average CPI-W for the third calendar quarter of the current year. Any resulting percentage increase matches the percentage by which Social Security and VA benefits beginning in December of the current year will be increased. SSI payments increased by the same percentage the following month (January). If the increase in the CPI-W is at least 0.1 percent, there will be a COLA. However, if the CPI-W increases by less than 0.05 percent or decreases, there won’t be a COLA.     Cost of Living (COLA) Allowance History
    Congress enacted the COLA provision as part of the 1972 Social Security Amendments. Before that, increases in your benefits had to be enacted by Congress. At that time, inflation was relatively high. As such, the provision enacted in 1972 provided an automatic COLA only if the increase in the CPI-W was at least 3%. This is called the “three-percent trigger.” By the mid-1980s, as inflation began to decline, the possibility arose that no annual COLA would be authorized. The CPI-W didn’t rise enough to meet the three-percent trigger. In 1986, Congress enacted legislation to eliminate the “three-percent trigger.” Other Automatic Increases
    SSA's program has other automatic increases based on increases in the national average wage index and is triggered only if there is a COLA for Social Security benefits. These increases are: The contribution and benefit base — the cap on wages and self-employment income subject to Social Security payroll tax.
    Retirement earnings test exempt amounts are caps on the amount of earnings that a beneficiary can earn before a reduction in benefits applies.
    Effect on Medicare Part B Premium
    Unlike the Social Security COLA, the CPI-W plays no part in the computation of the Medicare Part B premium. The Medicare Part B premium changes each year, if necessary, so that the Part B premium is sufficient to fund approximately 25% of the projected cost of the Part B program. Any such premium change is effective in January.
    Information about Medicare changes is available at Medicare.gov.
    Historical Cost of Living Allowances
    2024 COLA 2023 COLA 2022 COLA 2021 COLA 2020 COLA 2019 COLA The 1975-82 COLAs were effective with Social Security benefits payable for June (received by beneficiaries in July) each year. After 1982, COLAs have been effective, with benefits payable for December (received by beneficiaries in January).
    Automatic Cost-Of-Living Adjustments received since 1975
    July 1975 — 8.0%  July 1976 — 6.4%  July 1977 — 5.9%  July 1978 — 6.5%  July 1979 — 9.9%  July 1980 — 14.3%  July 1981 — 11.2%  July 1982 — 7.4%  January 1984 — 3.5%  January 1985 — 3.5%  January 1986 — 3.1%  January 1987 — 1.3%  January 1988 — 4.2%  January 1989 — 4.0%  January 1990 — 4.7%  January 1991 — 5.4%  January 1992 — 3.7%  January 1993 — 3.0%  January 1994 — 2.6%  January 1995 — 2.8%  January 1996 — 2.6%  January 1997 — 2.9%  January 1998 — 2.1%  January 1999 — 1.3%  January 2000 — 2.5% [1]  January 2001 — 3.5%  January 2002 — 2.6%  January 2003 — 1.4%  January 2004 — 2.1%  January 2005 — 2.7%  January 2006 — 4.1%  January 2007 — 3.3%  January 2008 — 2.3%  January 2009 — 5.8%  January 2010 — 0.0%  January 2011 — 0.0%  January 2012 — 3.6%  January 2013 — 1.7%  January 2014 — 1.5%  January 2015 — 1.7%  January 2016 — 0.0%  January 2017 — 0.3%  January 2018 — 2.0%  January 2019 — 2.8%  January 2020 — 1.6%  January 2021 — 1.3%  January 2022 — 5.9% January 2023 — 8.7% January 2024 — 3.2% (1) The COLA for December 1999 was initially determined as 2.4 percent based on CPIs published by the Bureau of Labor Statistics. Public Law 106-554 states that this COLA is now 2.5 percent.

    Tbird
    I read an interesting article from the Orlando Sentinel: “Caregivers want answers to mystery link between ALS, military service.”
    Caregivers want answers to mystery link between ALS, military service | Orlando Sentinel
    Well, they don’t know. What they do know is:   Per the ALS Association: Existing evidence supports the conclusion that people who’ve served in the military are at a greater risk of being diagnosed with ALS and dying from the disease than those with no history of military service.
    As outlined in this paper, study after study continues to demonstrate this to be true: If you serve in the military, regardless of the branch of service, regardless of whether you served in the Persian Gulf War, Vietnam, Korea or World War II, and regardless of whether you served during a time of peace or a time of war, you’re at a greater risk of dying from ALS than if you hadn’t served in the military.
    We’re asking these questions today:
    Why is there a greater risk of ALS with military service? What are we, as a nation, going to do about it? ALS in the Military | The ALS Association
    ALS in the Military Full Report ALS in the Military Summary
    Research conducted in the US and Denmark reveals that vets are 1.3 to 2 times more likely than non-vets to succumb to this condition, regardless of whether or not they saw active duty during wartime. 

    In 2008, the U.S. Department of Veterans Affairs began covering 100% of ALS treatments for veterans who served a minimum of 90 days in recognition of the illness as a service-connected injury.   ALS in the Military Summary Source: ALS Association

    Tbird
    We want to ensure that Veterans, especially those who have served in wartime, are aware that certain individuals and businesses may try to take advantage of them.
    These entities are not typically recognized or approved by the VA, and some may misuse their VA certification. Remember to stay vigilant!
    Avoid Scams - Get help from a VA accredited representative
    Get competent representation.
    If you’re in need of guidance when filing a claim or appeal, it’s best to enlist the help of an accredited representative. Certified and trained in VA claims and appeals processes, these professionals have the expertise required to assist with your needs. Veterans Service Officers (VSOs) are available to represent veterans, service members, dependents and survivors. Gain insight into how an accredited representative can provide assistance by learning more about their services
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    Pass a background check
    Take continuing education courses to make sure they’re providing the most up-to-date information
    Recognized organizations and individuals can legally represent a Veteran, service member, dependent, or survivor before VA. Non-recognized organizations and individuals can provide information, but can’t be representatives.
    Note: Veterans Service Officers work for Veterans Service Organizations (both are called VSOs), as well as for local government offices.
    VSO - What they do
    Accredited representatives and VSOs need to meet these requirements:
    Pass an exam
    Pass a background check
    Take continuing education courses to make sure they’re providing the most up-to-date information
    Recognized organizations and individuals can legally represent a Veteran, service member, dependent, or survivor before VA. Non-recognized organizations and individuals can provide information, but can’t be representatives.
    Note: Veterans Service Officers work for Veterans Service Organizations (both are called VSOs), as well as for local government offices.
    What does an accredited representative or a VSO do?
     
    Accredited representatives and VSOs can help you understand and apply for VA benefits, like these:
    Financial support (monthly payments)
    Education
    Veteran Readiness and Employment (VR&E)
    Home loans
    Life insurance
    Pension
    Health care
    Burial benefits
    These trained professionals can also help in these ways:
    Help you gather supporting documents (like a doctor’s report or medical test results)
    File a claim or appeal on your behalf
    Provide added support, like helping with transportation to medical appointments or emergency funds
    Note: If your claim has a clear factual or legal error, your accredited representative or VSO can request a faster Higher-Level Review decision through a new pilot program called Claim Accuracy Request (CAR).
    Learn more about a Claim Accuracy Request (PDF)
    What does it cost to use an accredited representative or a VSO?
    In general, no individual or organization may charge you a fee to help you file your initial application for benefits. But they may charge you for unusual expenses. It’s only after we’ve made a decision about your original claim that VA-accredited claims agents and attorneys may charge for their services. Make sure you ask up front what, if any, fees you’ll be charged. If you believe a claims agent or attorney charged a fee that’s too high, you can challenge it.
    Find out more in the “How to Challenge a Fee” guide (PDF)
    How do I find an accredited representative or a VSO?
     
    You can find an accredited representative or a VSO in 1 of 2 ways:
    Go to eBenefits to find a local representative (including a recognized VSO, an attorney, or a claims agent) by state/territory, zip code, or the organization’s name.
    Go to eBenefits
    Or search the VA Office of the General Counsel’s list to find VA-recognized organizations and VA-accredited individuals by name, city, state, or zip code.
    Search the VA Office of the General Counsel’s list
    How do I set up an accredited representative or a VSO to work on my behalf?
    You’ll need to either use eBenefits or fill out a form and mail it in.
    Choose 1 of these ways to get set up:
    Use eBenefits to let us know you’ll be working with a representative or to change your current representation.
    Go to eBenefits
    To have a VSO help you, fill out an Appointment of Veterans Service Organization as Claimant’s Representative (VA Form 21-22).
    Get VA Form 21-22 to download
    To have a claims agent or attorney help you, fill out an Appointment of Individual as Claimant’s Representative (VA Form 21-22a).
    Get VA Form 21-22a to download
    If you’re filling out one of the forms, you’ll need to mail it to your nearest VA regional office. Please speak to the service organization or representative before you send your request.
    Source VA.gov

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    Government Websites
    Department of Veteran Affairs
    Board of Veterans’ Appeals
    VA Office of Inspector General
    U.S. Court of Appeals for Veterans Claims
    Senate Committee on Veterans’ Affairs
    House Committee on Veterans’ Affairs
    State VA Offices
    Board of Veterans’ Appeals Decision Search
    VA Fact Sheets
    VA Forms
    Veterans Service Organizations
    The American Legion
    Vietnam Veterans of America
    Veterans of Foreign Wars
    National Organization of Veterans Advocates
    VA Directory of Veterans Service Organizations (VSO)
    AMVETS
    To Check on The Status of Your VA Claim:
    eBenefits
    1-800-827-1000
    Health Information
    VA Health Benefits
    VA Agent Orange Health
    VA National Center for PTSDVeterans Health AdministrationVA Gulf War IllnessVA Burn Pit / ToxinsVA Women Veterans Healthcare
    VA Center for Minority Veterans
    VA Veterans Crisis Line (Suicide Prevention)
    Toll-Free 1-800-273-8255, then press 1
    VA Community Provider Toolkit (Suicide Prevention)
    Veterans Resources
    PEB Forum
    List Of Blue Water Navy Ships Exposed To Agent Orange (Interactive Vietnam Map)
    Military Base Toxic Exposure
    Accessing Military Records or VA Decisions:
    Military Personnel Records 
    VA Records Management Center
    VA Homeless Veterans Assistance:
    www.VA.gov/homeless
    1-800-424-3838

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    Medical Malpractice Claims by Members of the Uniformed Services
    View PDF Here 2023-23013.pdf
    72412 Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Proposed Rules
    DEPARTMENT OF DEFENSE
    Office of the Secretary 32 CFR Part 45
    [Docket ID: DOD–2023–OS–0065]
    RIN 0790–AL70
    AGENCY: Department of Defense Office of General Counsel, DoD.
    ACTION: Proposed rule with request for comments.
    SUMMARY: The Department of Defense (DoD) proposes to amend the regulations governing medical malpractice claims by members of the uniformed services to adjust and update certain portions of the regulation related to calculation of damages. Currently, total potential damages are reduced by offsetting most of the compensation otherwise provided or expected to be provided by DoD or the Department of Veterans Affairs (VA) for the same harm that is the subject of the medical malpractice claim. The amendments would apply offsets to economic damages only. The amendments would also clarify when future lost wages may be awarded.
    DATES: Comments will be accepted on or before December 19, 2023. The changes in the proposed rule would apply to claims received by DoD on or after the date the final rule is published in the Federal Register and to claims pending before DoD on that date.
    ADDRESSES: You may submit comments, identified by docket number and/or regulatory identifier number (RIN) and title, by any of the following methods:
    Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments. Mail: Department of Defense, Office of the Assistant to the Secretary of Defense for Privacy, Civil Liberties, and Transparency, Regulatory Directorate, 4800 Mark Center Drive, Attn: Mailbox 24, Suite 08D09, Alexandria, VA 22350– 1700.
    Instructions: All submissions received must include the agency name and docket number or RIN for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the internet at http:// www.regulations.gov as they are received without change, including any personal identifiers or contact information.
    FOR FURTHER INFORMATION CONTACT:
    Melissa D. Walters, (703) 681–6027.
    SUPPLEMENTARY INFORMATION:
    Background Section 2733a of title 10, United States Code, allows members of the uniformed services or their authorized representatives to file claims, and the Secretary of Defense to pay such claims, for personal injury or death caused by
    a DoD health care provider in a covered military medical treatment facility, as defined in that section. DoD published an interim final rule to establish uniform standards and procedures for adjudicating these claims on June 17, 2021 (86 FR 32194) and a final rule on
    August 26, 2022 (87 FR 52446).
    Explanation of Changes With This Rule The proposed amendments to 32 CFR
    45.11 would apply offsets for payments made by the U.S. Government to economic damages only. Under the current version of 32 CFR 45.11, total potential damages are reduced by offsetting most of the compensation otherwise provided or expected to be provided by DoD or VA for the same harm that is the subject of the medical malpractice claim.
    The amendments would also clarify
    that future lost wages may be awarded:
    (1) until the time DoD determines that the claimant is, or is expected to be, medically rehabilitated and able to resume employment; (2) in cases of permanent incapacitation, until expiration of the claimant’s work-life expectancy; or (3) in cases of death, until the expiration of the claimant’s work-life expectancy, after deducting for the claimant’s personal consumption.
    Section-by-Section Discussion The following is a section-by-section overview of the amendments in this rulemaking.
    Section 45.1—Purpose of this part.
    Proposed § 45.1(b) eliminates a reference to the total value of compensation the claimant is expected to receive under a comprehensive system of compensation for death or disability being subject to offset.
    Instead, it generally refers to § 45.11, which relates to offsets.
    Section 45.9—Calculation of damages:
    economic damages. Proposed
    § 45.9(b)(4) changes ‘‘loss of earning capacity’’ to ‘‘future lost earnings’’ to parallel ‘‘past lost earnings’’ in
    § 45.9(b)(3). Proposed § 45.9(b)(4) includes a change to account for future lost earnings until the time DoD determines that the claimant is, or is expected to be, medically rehabilitated
    and able to resume employment or, in cases of permanent incapacitation, until expiration of the claimant’s work-life expectancy. Future lost earnings must be substantiated by appropriate documentation and claimants have an obligation to mitigate damages.
    Proposed § 45.9(d) is added to
    indicate that an injury or condition does not result in lost earnings for purposes of this regulation if the lost earnings are the result of disability discrimination. Lost earnings stemming from disability discrimination may be settled and paid under other provisions of law and therefore are not compensable under this regulation.
    For example, if a claimant suffers
    severe facial disfigurement as a result of medical malpractice but because a potential employer discriminates against that claimant for fear of negative reactions to the disfigurement, the claimant’s redress for the inability to obtain employment would be under provisions of law relating to employment discrimination and not under 10 U.S.C. 2733a.
    Section 45.10—Calculation of
    damages: non-economic damages. Proposed § 45.10(a) includes language currently in § 45.10(b) regarding proof of a claimant’s non-economic damages that DoD may require. This amendment keeps information relating to the proof of non-economic damages together for clarity.
    Proposed § 45.10(b) consolidates the
    description of the elements of non- economic damages into one paragraph. This eliminates confusion that might arise from separating conscious pain and suffering from disfigurement, as a single amount is awarded for all non- economic damages.
    Section 45.10(c) removes the amount
    of the cap on non-economic damages from the regulatory text. This change eliminates the need for publication of conforming administrative amendments to the regulation each time updates to the cap amount are published via Federal Register notice.
    Section 45.11—Calculation of
    damages: offsets for DoD and VA Government compensation. In the current version of the regulation, total potential damages calculated under this part, both economic and non-economic, are reduced by offsetting most of the compensation otherwise provided, or expected to be provided, by DoD or VA for the same harm that is the subject of the medical malpractice claim. Under the proposed amendments, offsets are applied to economic damages only.
    Proposed § 45.11(a) states that total potential economic damages calculated under this part are reduced by offsetting most of the compensation otherwise provided, or expected to be provided, by DoD or VA for the same harm that is the subject of the medical malpractice claim. This is a change from the current rule, which makes all offsets from the total potential economic and non- economic damages. Compensation received from DoD or VA that does not relate to the malpractice is still excluded from the offset. Under
    § 45.4(c), claimants have the burden of substantiating their claim by a preponderance of the evidence and, under §§ 45.9(a) and 45.10(a), the burden of proving the amount of damages by a preponderance of the evidence. This change makes it clear that DoD has the burden of establishing the applicability and amount of any offsets from the amount of damages otherwise payable to the claimant.
    Proposed § 45.11(c), formerly
    § 45.11(d) in the current regulation, states that present value is used to calculate offsets against economic damages. This change is necessary with the proposed change to offset economic damages only. An award of future lost earnings and retirement benefits is reduced to present value, so the offsetting compensation for future lost earnings and retirement benefits must also be reduced to present value.
    Proposed § 45.11(d) contains the same
    language as § 45.11(c) in the current regulation, with the addition of language from § 45.11(a) in the current regulation stating that claimants must provide information not available to DoD, but requested by DoD, for the purpose of determining offsets.
    Proposed § 45.11(e) combines what is
    currently in §§ 45.11(e) through (g) in the current regulation. Proposed
    § 45.11(e) removes the reference to pay and allowances while a member remains on active duty, or in an active status, as an offset because the member receiving these pay and allowances has not lost earnings.
    Regulatory Analysis Executive Order 12866, ‘‘Regulatory Planning and Review,’’ and Executive Order 13563, ‘‘Improving Regulation and Regulatory Review’’
    Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health, and safety effects; distribution of impacts; and equity). Executive Order 13563 emphasizes the importance of
    quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This proposed rule has been determined to be a significant regulatory action, although not economically significant. Accordingly, it has been reviewed by the Office of Management and Budget as required by these Executive orders.
    Public Law 96–354, ‘‘Regulatory Flexibility Act’’ (5 U.S.C. 601 et seq.)
    The General Counsel of the Department of Defense certified that this proposed rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on
    a substantial number of small entities. Therefore, the Regulatory Flexibility Act, as amended, does not require a regulatory flexibility analysis.
    Section 202, Public Law 104–4,
    ‘‘Unfunded Mandates Reform Act’’
    Section 202 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532) requires agencies to assess anticipated costs and benefits before issuing any rule whose mandates require non-Federal spending in any one year of $100 million in 1995 dollars, updated annually for inflation. This proposed rule does not mandate any requirements for State, local, or tribal governments, nor affect private sector costs.
    Public Law 96–511, ‘‘Paperwork Reduction Act’’ (44 U.S.C. Chapter 35)
    It has been determined that this proposed rule does not impose new reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995.
    Executive Order 13132, ‘‘Federalism’’
    Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has federalism implications. This proposed rule does not have a substantial effect on State and local governments.
    Executive Order 13175, ‘‘Consultation and Coordination With Indian Tribal Governments’’
    Executive Order 13175 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct compliance costs on one or more Indian tribes, preempts tribal law, or affects the
    distribution of power and responsibilities between the Federal Government and Indian tribes. This rulemaking will not have a substantial effect on Indian tribal governments.
    Impact of This Regulation Summary The proposed amendments adjust and update certain portions of the regulation related to calculation of damages. The amendments would apply offsets to economic damages only. The amendments would also clarify when future lost wages may be awarded.
    Affected Population At the end of Fiscal Year 2022, there were approximately 1,410,000 Active Duty Service members, and 440,000 Reserve and National Guard members eligible for DoD healthcare benefits.
    These uniformed Service members will be able to file claims with DoD alleging malpractice from care at DoD military medical treatment facilities as defined in section 2733a.
    Costs DoD does not estimate that any additional claims will be filed as a result of the proposed amendments to the regulation. Since the enactment of section 2733a, individuals who believe they have been subjected to malpractice have filed claims involving injuries ranging from minor injuries to death, regardless of the potential application of offsets.
    Transfers Regardless of the number of claims in which malpractice occurred, the only claims in which damages will be awarded are those which exceed the offsets for any payment to be made. The proposed changes solely impact non- economic damages. No changes are proposed that would impact offsets from economic damages.
    Based on claims adjudicated under
    this part in 2021 and 2022, four claims were adjudicated in which offsets were applied. The outcome would have been different in only one of these claims had the proposed amendments been in effect. In that one claim, $200,000 of the potential non-economic damages was subject to offset. This $200,000 would not have been offset from non-economic damages under the proposed changes.
    Claims in 2021 and 2022 may not
    necessarily be representative of claims in future years. Claims were accepted beginning January 1, 2020, but could only begin to be adjudicated beginning on July 17, 2021, when the Interim Final Rule became effective. The first claims adjudicated under this new process
     
    were claims that did not require a decision on the merits of whether malpractice occurred, such as claims that were denied because the alleged malpractice fell outside the statute of limitations in 10 U.S.C. 2733a(b)(4). Just as with claim resolution processes involving non-Service member claims, more complex claims, which tend to involve higher amounts of damages, require time for review. Since Service members’ claims have only been able to be adjudicated since July 17, 2021, more complex claims may still be under adjudication, and the one claim that would have had a different outcome in 2021 and 2022 may not be representative of the number of claims that would be impacted going forward.
    Taking the limited information into
    account, DoD estimates that the changes to the regulation would affect 2 claims per year, instead of basing its estimate on the one historical claim that would have been impacted. The average of the non-economic damages at issue in the four claims in which offsets were applied was $337,500. Assuming
    $337,500 additional would be paid in 2 claims, the estimated total cost to the government therefore would be
    $675,000. Of this, the first $100,000 of each of the two claims would be paid by DoD, with the remainder to be paid by the Treasury.
    Benefits The proposed changes to the regulation will allow some Service members to receive compensation for non-economic damages that they would not have been able to receive under the current regulation. The changes afford some Service members additional compensation in light of the non- economic harms they have experienced as a result of malpractice.
    List of Subjects in 32 CFR Part 45
    Medical, Malpractice, Claims, Uniformed Services.
    Accordingly, the Department of Defense proposes to amend 32 CFR part 45 to read as follows:
    PART 45—MEDICAL MALPRACTICE CLAIMS BY MEMBERS OF THE UNIFORMED SERVICES
    1. The Authority for part 45 continues to read as follows: Authority: 10 U.S.C. 2733a.
    2. Amend § 45.1 by revising paragraph (b) to read as follows:
    § 45.1  Purpose of this part.
    * * * * *
    (b) Relationship to military and veterans’ compensation programs.
    Federal law provides a comprehensive system of compensation for military members and their families in cases of death or disability incurred in military service. This system applies to all causes of death or disability incurred in service, whether due to combat injuries, training mishaps, motor vehicle accidents, naturally occurring illnesses, or household events, with limited exceptions (e.g., when the member is absent without leave or the injury is due to the member’s intentional misconduct or willful negligence). This comprehensive compensation system applies to cases of personal injury or death caused by medical malpractice incurred in service as it does to all other causes. This part provides for the possibility of separate compensation in certain cases of medical malpractice but in no other type of case. A medical malpractice claim under this part will have no effect on any other compensation the member or the member’s family is entitled to under the comprehensive compensation system applicable to all members. However, if the U.S. government makes a payment for harm caused by malpractice, this payment reduces the potential damages under this part as provided in § 45.11.
    * * * * *
    3. Amend § 45.9 by revising paragraph (b)(4) and adding paragraph (d) to read as follows: § 45.9 Calculation of damages: economic damages.
    * * * * *
    (b) * * *
    (4) Future lost earnings:
    Until DoD determines that the claimant is, or is expected to be, medically rehabilitated and able to resume employment; In cases of permanent incapacitation, until expiration of the claimant’s work-life expectancy; or
    In cases of death, until the expiration of the claimant’s work-life expectancy, after deducting for the claimant’s personal consumption.
    Future lost earnings must be substantiated by appropriate documentation and claimants have an obligation to mitigate damages.
    In addition, loss of retirement benefits is compensable and similarly discounted after appropriate deductions. Estimates for future lost earnings and retirement benefits must be discounted to present value.
    * * * * *
    (d) Disability discrimination. An injury or condition does not result in lost earnings for purposes of, and is not compensable under, this regulation if the lost earnings stem from disability
    discrimination, which may be settled and paid under other provisions of law.
    * * * * *
    4. Amend § 45.10 by revising paragraphs (a) through (c) to read as follows: § 45.10 Calculation of damages: non- economic damages.
    In general. Non-economic damages are one component of a potential damages award. The claimant has the burden of proof on the amount of non- economic damages by a preponderance of evidence. DoD may request an interview of or statement from the claimant or other person with primary knowledge of the claimant. DoD may also require medical statements documenting the claimant’s condition and, in cases of disfigurement, photographs documenting the claimant’s condition. Elements of non-economic damages. Non-economic damages include pain and suffering; physical discomfort; mental and emotional trauma or distress; loss of enjoyment of life; physical disfigurement resulting from an injury to a member that causes diminishment of beauty or symmetry of appearance rendering the member unsightly, misshapen, imperfect, or deformed; and the inability to perform daily activities that one performed prior to injury, such as recreational activities. Such damages are compensable as part of non-economic damages.
    Cap on non-economic damages. In any claim under this part, total non- economic damages may not exceed a cap amount published by DoD via a Federal Register notice. DoD will periodically publish updates to this cap amount via Federal Register notices, consistent with changes in prevailing amounts in the majority of the States with non-economic damages caps.
    * * * * *
    5. Amend § 45.11 by: a. Revising paragraph (a); b. Redesignating paragraph (c) and (d) as paragraphs (d) and (c), respectively; c. Revising the first sentence in the newly redesignated paragraph (c);
    d. Adding a sentence to the end of the newly redesignated paragraph (d); e. Revising paragraph (e); and f. Removing paragraphs (f) and (g). The revisions and additions read as follows:
    § 45.11 Calculation of damages: offsets for DoD and VA Government compensation.
    In general. Total potential economic damages calculated under this part are reduced by offsetting most of the compensation otherwise provided or expected to be provided by DoD or VA for the same harm that is the subject of the medical malpractice claim. DoD has the burden to establish the applicability and amount of any offsets.
    * * * * *
    Present value of future payments and benefits. In determining offsets under this section from economic damages, DoD will use the present value of future payments and benefits. * * * Information considered. * * * Claimants must provide information not available to DoD, but requested by DoD, for the purpose of determining offsets. Benefits and payments that may be considered as potential offsets. The general rule is that potential damages calculated under this part may be offset only by DoD or VA payments and benefits that are primarily funded by Government appropriations. Potential damages calculated under this part are not offset by U.S. Government payments and benefits that are substantially funded by the military member. The following examples are provided for illustrative purposes only, are not all- inclusive, and are subject to adjustment (2) The following U.S. Government payments and benefits are substantially funded by the military members or are otherwise generally not eligible for consideration as potential offsets:
    Servicemembers Group Life Insurance. Traumatic Servicemembers Group Life Insurance. Social Security disability benefits. Social Security survivor benefits. Prior Government contributions to a Thrift Savings Plan. Commissary, exchange, and morale, welfare, and recreation facility access. Value of legal assistance and other services provided by DoD. Medical care provided while in active service or in an active status prior to death, retirement, or separation. Dated: October 12, 2023.
    Patricia L. Toppings,
    OSD Federal Register Liaison Officer, Department of Defense.
    [FR Doc. 2023–23013 Filed 10–19–23; 8:45 am]
    BILLING CODE 6001–FR–P

    Tbird
    How to file a VA disability claim
    Eligibility Fully Developed Claims Be sure to fill out your claim completely.  Gather any evidence (supporting documents) you’ll submit yourself when you file your VA disability claim. Sending all your supporting documents and your claim will help speed up the process. Forms You May Need
     
    Evidence to Support Your Claim
     
    To support your VA disability claim, you can provide certain documents that may help strengthen your case. These documents include VA medical records and hospital records, which can relate to your claimed illnesses or injuries, or they could show that your disability rating has worsened. Private medical records and hospital reports are also helpful, as they could relate to your claimed illnesses or injuries or show that your disability has worsened.
    Additionally, supporting statements from family members, friends, clergy members, law enforcement personnel, or people you served with can provide valuable insight into your claimed condition and how and when it occurred or worsened.
    Depending on the type of claim you file, you may need to gather the supporting documents yourself or ask for help from the VA to gather evidence.
    It's important to note that the VA will review your discharge papers (DD Form 214 or other separation documents) and service treatment records as part of the process. If you need more information about the evidence required for your claim, you can learn more on our website.
    Learn more about the evidence we’ll need for your claim.
    Supporting Evidence
     
    You do not have to provide any supporting evidence for your claim initially. However, the VA may require a claim examination to obtain more information about your condition. If you need more time to gather supporting documents, you can save your application and complete it later. It is important to note that you have up to one year from the date the VA receives your claim to submit any supporting evidence. The VA will consider the date you started your application as your date of claim as long as you complete it within 365 days. 
    Learn more about VA claim exams (C&P exams)
    Below is from the VA's website. Please check this link for what the latest is. This information is current as of 03/2024
    How do I file a claim for compensation?
    You can file a claim online now.
    File for disability compensation online
    You can also file for disability compensation in any of these 4 ways
    By mail
    File your claim by mail using an Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ).
    Get VA Form 21-526EZ to download
    Print the form, fill it out, and send it to this address:
    Department of Veterans Affairs
    Claims Intake Center
    PO Box 4444
    Janesville, WI 53547-4444
    In person
    Bring your application to a VA regional office near you.
    Find a VA regional office near you
    By fax
    If you’re in the U.S., fax your application to 844-531-7818.
    If you’re outside the U.S., fax your application to 248-524-4260.
    With the help of a trained professional
    You can work with a trained professional called an accredited representative to get help filing a claim for disability compensation.
    Get help from an accredited representative.
    Should I submit an intent to file form?
    If you plan to file for disability compensation using a paper form, you may want to submit an intent to file form first. This can give you the time you need to gather your evidence while avoiding a later potential start date (also called an effective date). When you notify us of your intent to file, you may be able to get retroactive payments (compensation that starts at a point in the past).
    Note: If you file for disability compensation online, then you don’t need to notify us of your intent to file. This is because your effective date gets set automatically when you start filling out the form online—before you submit it.
    Find out how to submit an intent to file form           
    What happens after I file my VA disability claim?
    Find out what happens after you file
    You don’t need to do anything while you’re waiting unless we send you a letter asking for more information. If we schedule exams for you, be sure not to miss them.
    Check your VA claim status
    How long does it take VA to make a decision?
    158.4 days Average number of days to complete disability-related claims in February 2024 More information about filing disability claims
    Claim types and when to file
    Learn about standard claims, supplemental claims, secondary claims, and more.
    Evidence needed for your disability claim
    Find out what evidence we’ll need to support your disability claim.
    Disabilities that appear within 1 year after discharge
    Find out if you can get disability benefits if you have signs of an illness within a year after being discharged from service.
    Get help from an accredited representative
    Find out how to work with a trained professional called an accredited representative to file your claim.
    Supporting forms for VA claims
    Find additional forms that you may need to support your claim.
    Below is a link to the VA's website explaining disability compensation before you leave the service. It has some good information, so I've included it for you below.
    Click the link to download the  mlc-disability.pdf 
    Disability Compensation MILITARY LIFE CYCLE (MLC)
    ONLINE RESOURCE GUIDE
    The VA Disability Compensation module introduces the VA disability compensation (pay) benefit. This Online Resource Guide (ORG) provides web links to important resources
    related to the course. The VA.gov website offers current resources, tools and contact information for all VA benefits and services.
    VA TAP ONLINE COURSES
    The VA TAP Course Catalog is a comprehensive resource that includes information about all VA TAP course offerings, direct links to on-demand web-based training, and downloadable resource materials.
    To access these courses, navigate to the VA TAP Course Catalog. You may also scan the QR code at the top of this page. Then, select from the courses available in the VA TAP Curriculum.
    KEY VA RESOURCES
    Links
    The VA.gov website offers current resources, tools, and contact information for all VA benefits and services that may be available to Service members, Veterans, their families, caregivers, and survivors.
    VA home page COVID-19 Information Frequently Asked Questions (FAQs) VA benefits hotline: 1-800-827-1000 Hearing impaired: 1-800-829-4833 Technical Issues: 1-800-983-0937 VA Regional Offices VA Office Locations VA DISABILITY COMPENSATION
    VA Disability Compensation Video, “Paul applied for VA disability compensation before he left the military.” Video, “For Greg, VA disability compensation makes life easier.” Video, “With VA disability compensation, Maranda can focus on healing and advancing her career.” Video, “VA has understood that I needed things that I didn’t even realize I needed.” Eligibility for VA disability benefits How to apply for a discharge upgrade About VA DIC for spouses, dependents, and parents SERVICE CONNECTION
    Video: “Compensation 101: What is Service Connection?” PACT Act PACT ACT Frequently Asked Questions 2022 PACT ACT: Understanding Health Care Eligibility and Benefits Veterans Service Organizations (VSOs) DISABILITY RATINGS AND COMPENSATION RATES
    Video: “Compensation 101: How did I get this rating?” HOW TO APPLY
    How to file a VA disability claim Benefits Delivery at Discharge (BDD) Claims (from 90 to 180 days until separation) Filing overseas Fully Developed Claims (FDC) (from 89 days to 1 day until separation) Separation Health Assessment (SHA) Standard Claims (claims not eligible for the BDD or FDC programs) Claim effective dates DISABILITY PROCESS CLAIMS SELF-SERVICE TOOL VA.GOV
    Videos: “The New 526 Disability Form on VA.gov” “Getting Started: Section 1 of the Digital 526 Disability Compensation Tool at VA.gov” “Add Contentions: Section 2 of the Digital 526 Disability” “Add Evidence: Section 3 of the Digital 526 Disability Compensation Tool” “Getting Started: Sections 4 and 5 of the Digital 526 Disability Compensation Tool” Self-Service Disability Compensation Claims Tool at VA.gov DISABILITY COMPENSATION AND OTHER PAYMENTS
    DOD Wounded, Ill, and/or Injured Compensation and Benefits Handbook Concurrent Retirement and Disability Pay (CRDP) Combat Related Special Compensation (CRSC) Combat-Related Special Compensation (CRSC) (VA.gov) Combat-Related Special Compensation (CRSC) and Concurrent Retirement Disability Pay (CRDP) ADDITIONAL RESOURCES
    Getting started with State Veteran Benefits and Services? guide VA Welcome Kit Long-term care VA automobile allowance and adaptive equipment VA clothing allowance Fiduciary program VA health care COMPACT Act Housing grants VA life insurance Veteran Readiness and Employment (VR&E)

    Tbird
    These are recommendations. They propose some of these each year. They do not mean the changes will be made, but they give you a good idea of their thinking.
    Read Further: Military.com explains it in CBO Suggests Raising Tricare Fees, Cutting Veteran Benefits to Slash Deficit. 
    Options for Reducing the Deficit: 2019 to 2028Reducing the Deficit: 2019 to 2028
    CBO periodically issues a large number of options—this year’s installment presents 121—to decrease federal spending or increase federal revenues. The CBO’s website allows users to filter options by topic, date, and category.
     
    Published Dec 13, 2018
    PDF CBO Options for Reducing the Deficit- 2019 to 2028.pdf
    Summary
     
    Since 2007, federal debt held by the public has more than doubled in relation to the size of the economy, and it will keep growing significantly if the large annual budget deficits projected under current law come to pass. Congress faces various policy choices as it confronts the challenges posed by such a large and growing debt. To help inform lawmakers, the Congressional Budget Office periodically issues a compendium of policy options that would help reduce the deficit, reporting the estimated budgetary effects of those options and highlighting some arguments for and against them.
    This latest series report presents 121 options to decrease federal spending or increase federal revenues over the next ten years (see Summary Table below). Of those options, 112 are presented in the main body of the report, and most of those 112 would save $10 billion or more over that period. The remaining nine options are presented in an appendix and would generally have smaller budgetary effects.
    The options in this report come from various sources. Some are based on proposed legislation or the budget proposals of various Administrations; others come from Congressional offices or entities in the federal government or private sector. The options cover many areas—defense, health, Social Security, provisions of the tax code, and more. The budgetary effects identified for most options span the ten years from 2019 to 2028 (the period covered by CBO’s baseline budget projections), although many options would also have longer-term effects.
    Chapters 2 through 4 present options in the following categories:
    Chapter 2: Mandatory spending, Chapter 3: Discretionary spending, and Chapter 4: Revenues. Each chapter begins with a description of budgetary trends for the topic area, a general discussion of the method underlying the estimates of budgetary effects, and an overview of the options in the chapter. Then, the chapter offers individual entries for each option that provide background information, describe the option, discuss the estimated budgetary effects, the basis of those estimates, and the largest sources of uncertainty, and summarize arguments for and against the change.
    As a collection, the options are intended to reflect a range of possibilities, not a ranking of priorities or an exhaustive list. Including or excluding any particular option does not imply that CBO endorses or opposes it, and the report makes no recommendations. The report also does not contain comprehensive budget plans; it would be possible to devise such plans by combining certain options in various ways (although some would overlap and would interact with others).
    CBO’s website includes a search tool that allows users to filter options by major budget category, budget function, topic, and date. That tool is regularly updated to include only the most recent version of budget options from various CBO reports. Therefore, the tool currently includes all the options in this report. It also includes options that were analyzed in the past and were not updated for this report but remain informative. Those options were either in previous editions of this report or in different CBO reports analyzing specific federal programs or aspects of the tax code.
    Of interest to Veterans:
    Narrow Eligibility for Veterans’ Disability Compensation by Excluding Certain Disabilities Unrelated to Military Duties 4 to 33  End VA’s Individual Unemployability Payments to Disabled Veterans at the Full Retirement Age for Social Security 7 to 48  Reduce VA’s Disability Benefits to Veterans Who Are Older Than the Full Retirement Age for Social Security 11  Narrow Eligibility for VA’s Disability Compensation by Excluding Veterans With Low Disability Ratings 6 to 38 End Enrollment in VA Medical Care for Veterans in Priority Groups 7 and 8 57a
    Include Disability Payments From the Department of Veterans Affairs in Taxable Income 4 to 93   
    Mandatory Spending
    Title Savings, 2019–2028 (Billions of Dollars) Limit Enrollment in the Department of Agriculture’s Conservation Programs 3 to 10  Eliminate Title I Agriculture Programs 20  Reduce Subsidies in the Crop Insurance Program 4 to 21  Limit ARC and PLC Payment Acres to 30 Percent of Base Acres 10  Raise Fannie Mae’s and Freddie Mac’s Guarantee Fees and Decrease their Eligible Loan Limits 3 to 12  Eliminate or Reduce the Add-On to Pell Grants, Which Is Funded With Mandatory Spending 31 to 62  Limit Forgiveness of Graduate Student Loans 12 to 32  Reduce or Eliminate Subsidized Loans for Undergraduate Students 7 to 22  Reduce or Eliminate Public Service Loan Forgiveness 9 to 22  Remove the Cap on Interest Rates for Student Loans 11 to 16  Adopt a Voucher Plan and Slow the Growth of Federal Contributions for the Federal Employees Health Benefits Program 35 to 37a Establish Caps on Federal Spending for Medicaid 162 to 703  Limit States’ Taxes on Health Care Providers 15 to 344  Reduce Federal Medicaid Matching Rates 55 to 394  Introduce Enrollment Fees Under TRICARE for Life 12  Introduce Minimum Out-of-Pocket Requirements Under TRICARE for Life 27  Change the Cost-Sharing Rules for Medicare and Restrict Medigap Insurance 44 to 116  Increase Premiums for Parts B and D of Medicare 40 to 418  Raise the Age of Eligibility for Medicare to 67 15 to 22  Reduce Medicare’s Coverage of Bad Debt 12 to 39  Require Manufacturers to Pay a Minimum Rebate on Drugs Covered Under Part D of Medicare for Low-Income Beneficiaries 154  Modify Payments to Medicare Advantage Plans for Health Risk 47 to 67  Reduce Quality Bonus Payments to Medicare Advantage Plans 18 to 94  Consolidate and Reduce Federal Payments for Graduate Medical Education at Teaching Hospitals 34 to 40  Convert Multiple Assistance Programs for Lower-Income People Into Smaller Block Grants to States 88 to 247  Eliminate Subsidies for Certain Meals in the National School Lunch, School Breakfast, and Child and Adult Care Food Programs 11  Reduce TANF’s State Family Assistance Grant by 10 Percent 13  Eliminate Supplemental Security Income Benefits for Disabled Children 100a Link Initial Social Security Benefits to Average Prices Instead of Average Earnings 77 to 121  Make Social Security’s Benefit Structure More Progressive 7 to 36  Raise the Full Retirement Age for Social Security 28  Require Social Security Disability Insurance Applicants to Have Worked More in Recent Years 50  Eliminate Eligibility for Starting Social Security Disability Benefits at Age 62 or Later 20  Narrow Eligibility for Veterans’ Disability Compensation by Excluding Certain Disabilities Unrelated to Military Duties 4 to 33  End VA’s Individual Unemployability Payments to Disabled Veterans at the Full Retirement Age for Social Security 7 to 48  Reduce VA’s Disability Benefits to Veterans Who Are Older Than the Full Retirement Age for Social Security 11  Narrow Eligibility for VA’s Disability Compensation by Excluding Veterans With Low Disability Ratings 6 to 38  Use an Alternative Measure of Inflation to Index Social Security and Other Mandatory Programs 202  Divest Two Agencies of Their Electric Transmission Assets 2a Change the National Flood Insurance Program 1  Tighten Eligibility for the Supplemental Nutrition Assistance Program 8  Reduce Pension Benefits for New Federal Retirees 3  Eliminate the Special Retirement Supplement for New Federal Retirees 5  Discretionary Spending
    Title Savings, 2019–2028 (Billions of Dollars) Reduce the Department of Defense’s Budget 248 to 517  Reduce DoD’s Operation and Maintenance Appropriation (Excluding Funding for the Defense Health Program)  70 to 195  Cap Increases in Basic Pay for Military Service Members 18  Replace Some Military Personnel With Civilian Employees 14  Cancel Plans to Purchase Additional F-35 Joint Strike Fighters and Instead Purchase F-16s and F/A-18s 13  Stop Building Ford Class Aircraft Carriers 10  Reduce Funding for Naval Ship Construction to Historical Levels  50  Reduce the Size of the Nuclear Triad 8 to 9  Cancel the Long-Range Standoff Weapon 11  Defer Development of the B-21 Bomber 32  Modify TRICARE Enrollment Fees and Cost Sharing for Working-Age Military Retirees 11a Reduce the Size of the Bomber Force by Retiring the B-1B 17  Reduce the Size of the Fighter Force by Retiring the F-22 27  Cancel the Ground-Based Midcourse Defense System 18  Reduce the Basic Allowance for Housing to 80 Percent of Average Housing Costs 15a Cancel Development and Production of the New Missile in the Ground-Based Strategic Deterrent Program 24  Reduce Funding for International Affairs Programs 116  Reduce Appropriations for Global Health to Their Level in 2000 57  Eliminate Human Space Exploration Programs 89  Reduce Department of Energy Funding for Energy Technology Development 3 to 16  Eliminate Funding for Amtrak and the Essential Air Service Program 2 to 20a Limit Highway and Transit Funding to Expected Revenues 116  Eliminate the Federal Transit Administration 87  Increase the Passenger Fee for Aviation Security 21  Eliminate Federal Funding for National Community Service  9  Eliminate Head Start 92  Tighten Eligibility for Pell Grants 3 to 86a Increase Payments by Tenants in Federally Assisted Housing 21  Reduce Funding for the Housing Choice Voucher Program or Eliminate the Program 9 to 125  End Enrollment in VA Medical Care for Veterans in Priority Groups 7 and 8 57a Reduce the Annual Across-the-Board Adjustment for Federal Civilian Employees’ Pay 58  Reduce the Size of the Federal Workforce Through Attrition 35  Reduce Funding for Certain Grants to State and Local Governments 1 to 42  Repeal the Davis-Bacon Act 12a Eliminate Certain Forest Service Programs 6  Limit the Number of Cities Receiving Urban Areas Security Initiative Grants 1  Eliminate the International Trade Administration's Trade-Promotion Activities 3  Convert the Home Equity Conversion Mortgage Program Into a Direct Loan Program 3  Revenues
    Title Savings, 2019–2028 (Billions of Dollars) Increase Individual Income Tax Rates 123 to 905  Raise the Tax Rates on Long-Term Capital Gains and Qualified Dividends by 2 Percentage Points and Adjust Tax Brackets 70 to 81  Eliminate or Modify Head-of-Household Filing Status  66 to 165  Curtail the Deduction for Charitable Giving 146 to 176  Eliminate Itemized Deductions 1,312  Change the Tax Treatment of Capital Gains From Sales of Inherited Assets 105  Eliminate the Tax Exemption for New Qualified Private Activity Bonds 32  Expand the Base of the Net Investment Income Tax to Include the Income of Active Participants in S Corporations and Limited Partnerships 199  Tax Carried Interest as Ordinary Income 14  Include Disability Payments From the Department of Veterans Affairs in Taxable Income 4 to 93  Include Employer-Paid Premiums for Income Replacement Insurance in Employees’ Taxable Income 342  Reduce Tax Subsidies for Employment-Based Health Insurance 256 to 638  Further Limit Annual Contributions to Retirement Plans 103  Tax Social Security and Railroad Retirement Benefits in the Same Way That Distributions From Defined Benefit Pensions Are Taxed 411  Eliminate Certain Tax Preferences for Education Expenses 188  Lower the Investment Income Limit for the Earned Income Tax Credit and Extend That Limit to the Refundable Portion of the Child Tax Credit 8  Require Earned Income Tax Credit and Child Tax Credit Claimants to Have a Social Security Number That Is Valid for Employment 24  Increase the Payroll Tax Rate for Medicare Hospital Insurance  898 to 1,787  Increase the Payroll Tax Rate for Social Security 716 to 1,422  Increase the Maximum Taxable Earnings for the Social Security Payroll Tax 785 to 1,223  Expand Social Security Coverage to Include Newly Hired State and Local Government Employees 80  Tax All Pass-Through Business Owners Under SECA and Impose a Material Participation Standard 163  Increase Taxes That Finance the Federal Share of the Unemployment Insurance System 18  Increase the Corporate Income Tax Rate by 1 Percentage Point 96  Repeal Certain Tax Preferences for Energy and Natural Resource–Based Industries 2 to 8  Repeal the “LIFO” and “Lower of Cost or Market” Inventory Accounting Methods 58  Require Half of Advertising Expenses to Be Amortized Over 5 or 10 Years 63 to 132  Repeal the Low-Income Housing Tax Credit 49  Increase All Taxes on Alcoholic Beverages to $16 per Proof Gallon and Index for Inflation 68 to 83  Increase the Excise Tax on Tobacco Products by 50 Percent 42  Increase Excise Taxes on Motor Fuels and Index for Inflation 237 to 515  Impose an Excise Tax on Overland Freight Transport 358  Impose Fees to Cover the Costs of Government Regulations and Charge for Services Provided to the Private Sector 0 to 14  Impose a 5 Percent Value-Added Tax 1,920 to 2,970  Impose a Tax on Emissions of Greenhouse Gases 1,099  Impose a Fee on Large Financial Institutions 90 to 103  Impose a Tax on Financial Transactions 777  Tax Gains from Derivatives as Ordinary Income on a Mark-to-Market Basis 19  Increase Federal Civilian Employees’ Contributions to the Federal Employees Retirement System 45  Increase Appropriations for the Internal Revenue Service’s Enforcement Initiatives 35  ARC = Agriculture Risk Coverage; DoD = Department of Defense; LIFO = last in, first out; PLC = Price Loss Coverage; SECA = Self-Employment Contributions Act; TANF = Temporary Assistance for Needy Families; VA = Department of Veterans Affairs.
    For options affecting primarily mandatory spending or revenues, savings sometimes would derive from changes in both. When that is the case, the savings shown include effects on both mandatory spending and revenues. For options affecting primarily discretionary spending, the savings shown are the decrease in discretionary outlays. a. Savings do not encompass all budgetary effects.
    Data and Supplemental Information
    Data Underlying Figures Tables Showing Estimated Budgetary Effects Related Publications
    Options for Reducing the Deficit: 2021 to 2030 December 9, 2020 How Changing Social Security Could Affect Beneficiaries and the System's Finances April 24, 2019 The Deficit Reductions Necessary to Meet Various Targets for Federal Debt August 21, 2018 The Long-Term Budget Outlook Under Alternative Scenarios for Fiscal Policy August 8, 2018 The 2018 Long-Term Budget Outlook June 26, 2018 An Analysis of the President’s 2019 Budget May 24, 2018 The Budget and Economic Outlook: 2018 to 2028 April 9, 2018 Options for Reducing the Deficit: 2017 to 2026 December 8, 2016   Corrections and Updates
    On June 28, 2019, CBO reposted the report to correct values that it mentioned for the thresholds used to calculate the excise tax on high-cost health insurance plans. The analysis underlying the report and the resulting budgetary estimates were not affected.
    On October 23, 2019, CBO posted a file of tables showing the options’ estimated budgetary effects.
     

    Tbird
    Home Improvements/Structural Alterations (HISA) Grant
    This benefit provides medically necessary improvements and structural alterations to Veterans/Servicemembers’ primary residence for the following purposes:
    Allowing entrance to or exit from the primary residence Use of essential lavatory and sanitary facilities (e.g., roll-in showers) Allowing accessibility to kitchen or bathroom sinks or counters (e.g., lowering counters/sinks) Improving entrance paths or driveways in the immediate area of the home to facilitate access to the home through the construction of permanent ramping Improving plumbing or electrical systems made necessary due to the installation of home medical equipment HISA will not pay for:
    Walkways to exterior buildings Spa, hot tub, or Jacuzzi Exterior decking New Construction HISA Benefit Amounts
    Lifetime benefits for Veterans and Servicemembers.
    $6,800 will be approved to:
    Address a service-connected disability Address a compensable disability treated “as if” is a service-connected disability and for which the Veteran is entitled to medical services under 38 USC 1710(a)(2)(c) (e.g., disability acquired through treatment or vocational rehabilitation provided by VA) Address a non-service-connected disability if the beneficiary has a service-connected disability rated at least 50 percent disability (no combining or combination of disability percentages is allowed). $2,000 will be approved to:
    Address a disability that is not covered above Note: All HISA projects must be medically justified for the service-connected and/or non-service-connected disability. Don't hesitate to contact your local Prosthetic and Sensory Aids Service to determine your available lifetime HISA benefits.
    What does HISA exclude?
    Some excluded HISA structural alterations are exterior decking, the purchase or installation of spas/ hot tubs/Jacuzzi-type tubs, home security systems, removable equipment or appliances such as portable ramps, porch lifts, and stair glides, and routine repairs as part of regular home maintenance, like replacing roofs, furnaces, or air conditioners.
    HISA Process Map
    A copy can be downloaded here for a complete map of the HISA process.
    Additional Information
    Use the Facility Locator to contact the local Prosthetic and Sensory Aids Service near you for individual inquiries and eligibility information. Learn more about VBA's Specially Adapted Housing (SAH) and Special Housing Adaptation (SHA) grants. Applying for a HISA Benefit
    When applying for the HISA benefit, a completed HISA application package must include the following:
    (1) A prescription written or approved by a VA physician which includes:
    (a) The beneficiary’s name, address and telephone number;
    (b) A description of the prescribed project, including the area of the home to be improved or structurally altered; type of modification and all alternatives to the modifications; and items requiring installation.
    (c) The diagnosis and medical justification for the prescribed improvement or structural alteration. The medical justification should demonstrate the project’s clinical appropriateness, that is, the beneficiary’s clinical needs should support the type of home improvement or structural alterations being prescribed.
    (2) A completed and signed VA Form 10-0103, VETERANS APPLICATION FOR ASSISTANCE In Acquiring Home Improvement and Structural Alterations
    If applying for an advanced payment, request on the application (3) FOR RENTERS: A signed and notarized statement from the owner authorizing the improvement or structural alteration
    (4) A written itemized estimate of costs for labor, materials, permits, and inspections for the home improvement and structural alteration
    (5) A color photograph of the unimproved area
    NOTE: An inspection of the site by VA may be warranted.

    Tbird
    Top 10 Discussions
     
    1. VACP TREAS 310 is a Compensation Payment. Retro? You May Have Won Your Claim
    2. "Exam request - processing -- No longer needed."
    2. Compensation Issue? What Does It Mean?
    4. Under "Evidence Gathering, Review, and Decision," they wrote: We closed the notice for Exam Request - Processing. What does this mean?
    5. Payment History: Returned Payments?
    6. Second Signature?
    7. Secondary action required?
    8. Veterans Benefits Evaluations experience?
    9. Pending Completion of Concurrent EP
    10. No longer needed; second signature in claim.

    Tbird
    You know what’s tougher than the VA?
    Everything.
    I simply refuse to believe that we could force our minds and bodies to do the things we did in military service, but we cannot get our claim granted the way we believe it should be.
    Crawl through the mud under fire to find a better fire position? You can beat the VA.
    Jump out of an airplane and have your parachute collapse? You can beat the VA.
    Survive 2 years of 120 degree days and 80 degree nights in Iraq, living under constant threat of mortar attacks? You can beat the VA.
    I do believe, however, that we must approach our VA Disability claim with the same discipline, the same grit, and the same professionalism as we approached everything in our military career.
    Reprinted with permission from The Veterans Law Blog
     
    I Have Found 8 distinct patterns in VA Disability Claims.
    I have been representing Veterans in the VA Disability Claims process for 8 years. During that time, I have looked at hundreds, if not thousands, of VA C-Files.
    And while looking through those C-Files, I began to notice patterns.
    Patterns why the VA acted in certain ways.
    Patterns of filings by Veterans.
    Patterns of evidence in certain types of claims.
    I found 8 patterns that were so common, that it was hard to ignore their impact on a VA claim’s outcome or timeline. I realized that the Veterans that did MORE of these 8 things had completely different experiences with the VA disability claims process.
    A large percentage of people that followed the 8 patterns – what I call the 8 Steps – had very different outcomes and timelines in their VA disability claims and appeals.
    I tested the 8 Patterns in my Firm’s VA Disability Claims.
    When we followed all 8 Steps – and broke all 8 patterns – we achieved faster and more satisfactory outcomes from the VBA. Now, I don’t want to mislead you
    The VA still took a long time. But instead of taking 3 years for the VA to get a decision, we received many decisions in under a year. In a few cases, we received decisions in under 90 days.
    The VBA still made a lot of mistakes in the VA disability claims. But the VA errors were fewer and smaller.
    The results were shocking enough that I decided to share my experience with Veterans like you on the Veterans Law Blog.
    Here are the 8 Steps YOU can Take to Improve Your VA Claim.
    Step #1: The Veteran has to “See the Solution”.
    The VA may be the problem. But Congress isn’t the solution. The VA isn’t the solution. YOU are the solution.
    When you realize that you have MORE Power in Your VA Claim than you think you do, you have taken the 1st step in improving your VA Disability Claim.
    Start this Step by reading about the “5 Reasons that the VA Keeps Screwing Up Your VA Disability Claim”.
    Step #2: Get your VA C-File.
    The C-File is the most important document in your entire VA Disability Claim. Often times, the reason that the VA is denying your disability claim is in your C-File.
    Retired Army First Sergeant Daniel T. says it best:
    “I received my VA C-File less than 10 days, thanks. I read partial of my C-File and the information for my claim is in there, VA just didn’t read/find it. I found it on page 26 and again on page 29, wow. The only thing that I was missing from my C-File was my [name of his Specific Medical Record].”
    Get your VA C-File NOW – don’t wait another day. Follow this link to find out the method my firm uses to get Veteran’s C-Files from the VA.
    Step #3: Learn the Law.
    You don’t need to become a lawyer.
    But you do need to understand some of the basic law of a VA Disability Claim or Appeal. There are 10 Cases that I think Every Veteran Should Know – I teach you how to USE the law in these cases to help your VA disability claim.
    If you have a Sleep Apnea Claim, it is crucial to learn which arguments you will want to make – all turning on what type of sleep apnea you have and when it was diagnosed. (Check out the hugely popular VA Sleep Apnea Field Manual – in eBook format and as a paperback book.)
    If you have a TDIU claim – understanding how the VA looks at evidence and arguments in these claims can change how the VA treats your claim.
    Vietnam Veteran Gary A. said this about my Veterans Law eBook teaching the basics of a TDIU claim:
    “This eBook is pure gold. I am a Vietnam vet with a 80 % disability rating, currently being evaluated by the VA for TDIU. This book gave me the knowledge and faith that I have done the right things to be successfully evaluated.”
    Step #4: Build the 4 Pillars.
    4 Pillars need to be built in nearly every VA disability claim for service connection. The 4 Pillars are: Eligibility, Service Connection, Impairment Rating, and Effective Date.
    The most important pillar is Service Connection.
    The pattern that I saw most frequently in failed VA disability claims was that the Veteran did not know the 4 Pillars of a VA claim, or the 5 Ways to Service connect a disease, disability or injury. Far too many Veterans either made the VA look for the needle in the haystack, or relied on just 1 of the legal theories of service-connection.
    You can learn everything you need to know about proving VA Service Connection and the 4 Pillars of a VA claim in my 5 hour webinar. Don’t worry, it’s recorded, and broken down into bite-sized chapters so you don’t have to watch it all at once and can come back to it any time you want. Click here to get your copy today.
    Step #5: Use 5-Star Evidence.
    Next to not getting a C-File, using bad evidence or the wrong evidence is the single worst thing you can do in your VA Disability Claim. Most Veterans that had problems with the VA treated evidence like this: they hid the evidence in a haystack, and then griped at the VA for not finding the needle.
    I believe that to successfully prove your claim, you will need to learn – and use – 5 Star Evidence.
    Veterans need 2 types of evidence to prevail: Lay Evidence and Medical Evidence. Lay Evidence is the Bullet, and Medical Evidence is the Rifle. And my Veterans Law eBook VA Claims Evidence Field Manual (The Secret to Proving Your VA Disability Claim) will teach you the basics of using both.
    Vietnam Veteran Eddie T. said this about the Veterans Law Blog eBooks:
    “I am a 100-percent Vietnam combat veteran, who has had the good fortune of working for VA in the capacities of adjudication clerk, claims development, and three-years of training as an adjudicator. It has always intrigued me how lawyers win VA claims for veterans, when we fail to do so. I now have that answer.”
    Step #6: Choose the Battlefield.
    Many Veterans think of the VA Claims Process as a “Hamster Wheel” – and endless circle of claims, denials, and remands that never really gets them anywhere. In this eBook, I try to explain how the process is better thought of as a ladder.
    When we better understand the VA Claims Process, we can choose our Battlefield. Certain battles – like effective dates and many impairment rating issues – cannot be easily won at the VA Regional Office.
    They are often more easily won at the BVA.
    Other battles need to be fought at the Veterans Court. By understanding the VA Claims Process better, we can choose to stop fighting the wrong level of the VA, and push our claim into the forum where it is most likely to get granted.
    Step #7: Protect Survivors & Dependents.
    1 out of 3 cases that my Firm handles are for the surviving spouses of Veterans that died while their claim was pending at the VA.
    There are some things that Veterans need to do – NOW – to protect their surviving spouses and dependents in the event that they die while their VA disability Claim is pending.
    Preparing your claim for your survivor’s DIC claim, or Accrued Benefits claim, is something that you can start doing now…believe me, it will make it much easier for your surviving spouse to recover Dependency and Indemnity Compensation or Accrued Benefits if the VA does not grant your claim before you pass away.
    Step 8: Choose Your Representative Wisely.
    Not everyone likes to change their own oil. And for some folks, removing and cleaning the carburetor on a motorcycle is an impossible task.
    When you are in over your head, seek out help:
    Check out over 700 posts here on the Veterans Law Blog, where I post every weekday on VA disability claims topics.
    Talk to other Veterans that have been down this road before, on sites like Hadit.com, the Asknod Blog, or on Facebook in groups like VAisLying.com,
    I’ve written over 10 Veterans Law eBooks (I call them Field Manuals) that go into much more depth than even the lengthy posts on the Veterans Law Blog. Click here to check out all the Field Manuals – including those that are about to be published.
    From attorneys that are accredited to represent Veterans in their VA Disability Claims. (Here is a FREE eBook to help you figure out how to find and choose the attorney that is best for you in your VA Claim or Appeal.
    I have to tell you – no blog, no Veterans message board, no Facebook group of Veterans, and no Veterans Law eBook can take the place of good legal advice from an accredited VA attorney. The information I provide on this site in the Veterans Law Blog and Veterans Law eBooks are meant to be general guidance and education – not legal advice.
    Legal advice will be narrowly tailored to the specifics of YOUR VA Disability claim. These eBooks are general in nature – and designed to increase your education about, and understanding of, the VA Disability Claims process.
    If you trust the VA, they are very fond of telling Veterans that they don’t need to hire an attorney – and I’m not telling you that you do. But when you get in over your head, Get Help. Just make sure you get help from someone that knows what they are doing.
    Watch your back when it comes to VSOs – read about how the VFW literally betrayed a Veteran they represented. Read about a VSO that doesn’t know the timelines in the VA Claims Process.
    And watch your back with VSOs.

    Tbird
    The following information is from the VA's website and is provided here for your convenience.
    If you are calculating retroactive pay, check out our VA Historical Compensation Rates post. 
    Review 2024 Veterans disability compensation rates. Use our compensation benefits rate tables to find your monthly payment amount. We base your monthly payment amount on your disability rating and details about your dependent family members.
    Compensation rates for Veterans with a 10% to 20% disability rating
    Effective December 1, 2023
    Note: If you have a 10% to 20% disability rating, you won’t receive a higher rate even if you have a dependent spouse, child, or parent.
    Disability rating
    Monthly payment (in U.S. $)
    10%
    171.23
    20%
    338.49
    Compensation rates for Veterans with a 30% to 100% disability rating
    Effective December 1, 2023
    With a dependent spouse or parent, but no children
    Compensation rates for 30% to 60% disability rating
    Find the dependent status in the left column that best describes you. Then look for your disability rating in the top row. Your basic monthly rate is where your dependent status and disability rating meet.
    If your spouse receives Aid and Attendance benefits, be sure to also look at the Added amounts table, and add it to your amount from the Basic monthly rates table.
    Learn more about Aid and Attendance benefits
    Basic monthly rates for 30% to 60% disability rating
    Dependent status
    30% disability rating (in U.S. $)
    40% disability rating (in U.S. $)
    50% disability rating (in U.S. $)
    60% disability rating (in U.S. $)
    Veteran alone(no dependents)
    524.31
    755.28
    1,075.16
    1,361.88
    With spouse (no parents or children)
    586.31
    838.28
    1,179.16
    1,486.88
    With spouse and 1 parent (no children)
    636.31
    904.28
    1,262.16
    1,586.88
    With spouse and 2 parents (no children)
    686.31
    970.28
    1,345.16
    1,686.88
    With 1 parent(no spouse or children)
    574.31
    821.28
    1,158.16
    1,461.88
    With 2 parents(no spouse or children)
    624.31
    887.28
    1,241.16
    1,561.88
    Added amounts for 30% to 60% disability rating
    Dependent status
    30% disability rating (in U.S. $)
    40% disability rating (in U.S. $)
    50% disability rating (in U.S. $)
    60% disability rating (in U.S. $)
    Each additional child under age 18
    31.00
    41.00
    51.00
    62.00
    Each additional child over age 18 in a qualifying school program
    100.00
    133.00
    167.00
    200.00
    Spouse receiving Aid and Attendance
    57.00
    76.00
    95.00
    114.00
    Compensation rates for 70% to 100% disability rating
    Find the dependent status in the left column that best describes you. Then look for your disability rating in the top row. Your basic monthly rate is where your dependent status and disability rating meet.
    If your spouse receives Aid and Attendance benefits, be sure to also look at the Added amounts table, and add it to your amount from the Basic monthly rates table.
    Learn more about Aid and Attendance benefits
    Basic monthly rates for 70% to 100% disability rating
    Dependent status
    70% disability rating (in U.S. $)
    80% disability rating (in U.S. $)
    90% disability rating (in U.S. $)
    100% disability rating (in U.S. $)
    Veteran alone(no dependents)
    1,716.28
    1,995.01
    2,241.91
    3,737.85
    With spouse (no parents or children)
    1,861.28
    2,161.01
    2,428.91
    3,946.25
    With spouse and 1 parent (no children)
    1,978.28
    2,294.01
    2,578.91
    4,113.51
    With spouse and 2 parents (no children)
    2,095.28
    2,427.01
    2,728.91
    4,280.77
    With 1 parent(no spouse or children)
    1,833.28
    2,128.01
    2,391.91
    3,905.11
    With 2 parents(no spouse or children)
    1,950.28
    2,261.01
    2,541.91
    4,072.37
    Added amounts for 70% to 100% disability rating
    Dependent status
    70% disability rating (in U.S. $)
    80% disability rating (in U.S. $)
    90% disability rating (in U.S. $)
    100% disability rating (in U.S. $)
    Each additional child under age 18
    72.00
    82.00
    93.00
    103.55
    Each additional child over age 18 in a qualifying school program
    234.00
    267.00
    301.00
    334.49
    Spouse receiving Aid and Attendance
    134.00
    153.00
    172.00
    191.14
    With dependents, including children
    Compensation rates for 30% to 60% disability rating
    Find the dependent status in the left column that best describes you. Then look for your disability rating in the top row. Your basic monthly rate is where your dependent status and disability rating meet.
    If you have more than one child or your spouse receives Aid and Attendance benefits, be sure to also look at the Added amounts table, and add these to your amount from the Basic monthly rates table.
    Learn more about Aid and Attendance benefits
    Basic monthly rates for 30% to 60% disability rating
    Dependent status
    30% disability rating (in U.S. $)
    40% disability rating (in U.S. $)
    50% disability rating (in U.S. $)
    60% disability rating (in U.S. $)
    Veteran with 1 child only (no spouse or parents)
    565.31
    810.28
    1,144.16
    1,444.88
    With 1 child and spouse (no parents)
    632.31
    899.28
    1,255.16
    1,577.88
    With 1 child, spouse, and 1 parent
    682.31
    965.28
    1,338.16
    1,677.88
    With 1 child, spouse, and 2 parents
    732.31
    1,031.28
    1,421.16
    1,777.88
    With 1 child and 1 parent (no spouse)
    615.31
    876.28
    1,227.16
    1,544.88
    With 1 child and 2 parents (no spouse)
    665.31
    942.28
    1,310.16
    1,644.88
    Added amounts for 30% to 60% disability rating
    Dependent status
    30% disability rating (in U.S. $)
    40% disability rating (in U.S. $)
    50% disability rating (in U.S. $)
    60% disability rating (in U.S. $)
    Each additional child under age 18
    31.00
    41.00
    51.00
    62.00
    Each additional child over age 18 in a qualifying school program
    100.00
    133.00
    167.00
    200.00
    Spouse receving Aid and Attendance
    57.00
    76.00
    95.00
    114.00
    Compensation rates for 70% to 100% disability rating
    Find the dependent status in the left column that best describes you. Then look for your disability rating in the top row. Your basic monthly rate is where your dependent status and disability rating meet.
    If you have more than one child or your spouse receives Aid and Attendance benefits, be sure to also look at the Added amounts table, and add these to your amount from the Basic monthly rates table.
    Learn more about Aid and Attendance benefits
    Basic monthly rates for 70% to 100% disability rating
    Dependent status
    70% disability rating (in U.S. $)
    80% disability rating (in U.S. $)
    90% disability rating (in U.S. $)
    100% disability rating (in U.S. $)
    Veteran with child only (no spouse or parents)
    1,813.28
    2,106.01
    2,366.91
    3,877.22
    With 1 child and spouse (no parents)
    1,968.28
    2,283.01
    2,565.91
    4,098.87
    With 1 child, spouse and 1 parent
    2,085.28
    2,416.01
    2,715.91
    4,266.13
    With 1 child, spouse and 2 parents
    2,202.28
    2,549.01
    2,865.91
    4,433.39
    With 1 child and 1 parent
    1,930.28
    2,239.01
    2,516.91
    4,044.48
    With 1 child and 2 parents (no spouse)
    2,047.28
    2,372.01
    2,666.91
    4,211.74
    Added amounts for 70% to 100% disability rating
    Dependent status
    70% disability rating (in U.S. $)
    80% disability rating (in U.S. $)
    90% disability rating (in U.S. $)
    100% disability rating (in U.S. $)
    Each additional child under age 18
    72.00
    82.00
    93.00
    103.55
    Each additional child over age 18 in a qualifying school program
    234.00
    267.00
    301.00
    334.49
    Spouse receiving Aid and Attendance
    134.00
    153.00
    172.00
    191.14
    Note: We’re required by law to match the percentage of cost-of-living adjustments made to Social Security benefits. These adjustments help to make sure that the purchasing power of your benefits keeps up with inflation. 
    Get the latest cost-of-living adjustment (COLA) information on the Social Security Administration’s (SSA) website
    How to use the tables to find your monthly payment
    Find your basic rate
    Go to the compensation rates for your disability rating. On the Basic monthly rates table, find the amount for your disability rating and dependent status. This is your basic monthly rate.
    Example (Veteran with no children):
If you’re a Veteran with a 30% disability rating, and you have a dependent spouse (no dependent parents or children), your basic monthly rate would be $586.31 each month.
    Find your added amounts, if any apply
    If your spouse receives Aid and Attendance benefits or you have more than one child, you may qualify for additional monthly payment amounts as listed in the Added amountstable.
    Learn more about Aid and Attendance benefits
    First, determine your basic rate.
    Example (Veteran with children):
If you’re a Veteran with a 70% disability rating, and you have a spouse, plus 3 dependent children under the age of 18, you would start with the basic rate of $1,968.28 (for a Veteran with a spouse and 1 child).
    Next, look at the Added amounts table. Find the amount for children under age 18 ($72.00).
    Since your basic rate already provides payment for 1 child, you would add the rate of $72.00 for each additional child (so $72 x 2).   
    If your spouse receives Aid and Attendance, you would also add $134 (which is the added amount for a spouse receiving Aid and Attendance, for a Veteran with a 70% disability rating).
    In our example of a Veteran with 70% disability rating, your total monthly payment amount would be:
    $1,968.28 basic rate (1 spouse, 1 child)
+$72 (second child under 18)
+$72 (third child under 18)
+$134 (spouse who receives Aid and Attendance)
Total $2,246.28 

    Tbird
    In a previous post, I talked about the only two legal processes through which a Veteran can raise a claim for an Earlier Effective Date. Reprinted with Permission from Veterans Law Blog   While there are two legal processes to pursue an earlier effective date, several legal theories can be used in those processes. Here are 2 of the most common legal theories to argue for an Earlier Effective Date in a VA Disability Compensation Claim.   1.) Reopen your claim and prove service connection based on military service records or service medical treatment records.   This is one that the VA hates.  Here’s how it works.   You, the VA, or any third party discovers service records or service medical records that were not previously included in the VA C-File.  38 CFR 3.156(c) requires that the VA reconsider any previously denied claim to which those records might apply.   If those records lead to a grant of service connection for a previously denied claim (even if finally adjudicated), then 38 CFR 3.156(c)(2) contains the following requirement:

      The VA hates 3.156(c).  They commonly “overlook” this basis for an earlier effective date when Veterans find new military service records or military treatment service records.     2.) Show that the VA should have granted an earlier claim date based on the “implicit denial” doctrine.   The VA doesn’t have to dig through your C-file to find every viable claim.   However, if a claim is “reasonably raised” by the record, then the VA’s failure to address it could be considered an “implicit denial” of that claim.   Here’s how that might work.   A Vietnam-era Veteran who served at NKP in Thailand files a claim for service-connection due to Agent Orange exposure.   He tells the VA that he has  Diabetes Mellitus Type II.   To confirm the diagnosis of Diabetes, the VA receives medical records from the Veteran’s treating physician.   The treating physician’s records are replete with diagnoses of ischemic heart disease. However, in the ratings decision, the VA failed to address the ischemic heart disease, even while granting Service-Connection for the Diabetes based on Agent Orange Exposure.   A claim like this might be “reasonably raised” by the record.  In fact, this scenario occurs very frequently. While granting one claim, the VA turns a blind eye to a fairly obvious claim in the record that the Veteran may or may not have specifically asked for.  Most commonly this occurs with secondary conditions – conditions that the medical record clearly indicates are caused by the service-connected condition.   This happens because the bureaucrats deciding VA claims have little or no medical knowledge or training and are punished for thinking outside the box.   The BVA and the CAVC are going to look at a couple factors in analyzing the implicit denial doctrine:  relatedness of the claims, the timing of the claims, whether the ratings decision (or other adjudication of the Veterans Benefits claim) refers to the condition in a way that suggests it was denied, and whether the Veteran was represented or acting pro-se.   Remember, there are only 2 paths to an Earlier Effective Date – a CUE claim (or a Motion to Revise the Effective Date based on Clear and Unmistakeable Error), and as a legal basis in a current and pending appeal.

    Tbird
    The VA C and P Exam is not about convincing the Dr. your injury is service-related. It's about letting them conduct their exam and come to their conclusion.
    What is that Perspective?
     
    Honestly, it comes down to recognizing that the purpose of the VA C and P Exam is NOT to convince the doctor that your injury is service-connected but to let them conduct their exam and draw their conclusion. Ultimately, your current disability is or is not related to military service. Regardless of what the doctor says or what the VA Rater says, the limitations or symptoms are either related or not to your time in service.” Chris Attig Veterans Law Blog
    A doctor’s opinion can’t change what is or is not. It’s just another piece in the puzzle of proof. And the C&P Exam is just another piece of that puzzle. It is not the only piece – but if we view it as such, we often make our claims harder than they should be. And we certainly make them more stressful.
    Reprinted here with permission from Veterans Law Blog
    1. Every C&P Exam has 2 Goals.
     
    The first goal is to have the doctor confirm that your injury, disability, or limitations are related to your military service – to prove the Nexus Pillar – and/or to establish the degree you are disabled – the Impairment Pillar. 
     
    The second goal is to draw out the “evidentiary gap” in your claim through a C&P exam. The evidentiary gap is the difference between what is IN the record and how the VA SEES what is in the record. If you are denied service connection, it is almost always because of an evidentiary gap. Rather than throwing a haystack at the RO and then yelling at the VA for not finding the needle – let the Examiner tell you what is missing by reading their opinion. The key is NOT to provide excessive amounts of information in your C&P exam – keep your answers short and “make” the doctor get into your file to review the evidence. They tell you what is missing by what they focus hardest on. It is THEIR report which shows the evidentiary gap – not your statements in the C&P. This brings us to the next tip….
    2. Answer only the questions the VA C and P examiner asks.
    If the doc asks, “How are you doing,” and you throw the entire history of your claim at her over the next 15 minutes, what happens? She zones out. She doesn’t hear what you are saying and may find it hard to care about it. I get emails daily – some are 8-9 pages of micro-detailed histories of a VA Claim. It’s hard to read them. It’s hard to understand them. It’s hard to pick up the phone and call that person because I know I will get more facts I don’t need. Listen, I’m really good at doing this work, and while there are some real shit-bird doctors out there, there are some really good ones. They know how to call out the information they need to get the facts to understand the situation. So just answer the question you are asked – not the question you want to answer. But when you do answer the question, follow Tip #3
    3. Keep it Simple and Basic.
    Limit what you say to symptoms and limitations or nexus to brief statements. If you can’t answer the question “Why is your injury related to military service?” in under 20 seconds, you are talking too much. Here’s a great example of how you might respond to a VA C&P Examiner’s question about nexus: “You should defer to my Claims File as that has my complete position on why my injury is related to my service….but, very generally…..  Because of the in-service injury to my right knee, I began to overcompensate. Now my left knee needs replacement.” or “I was raped in basic training, and during the rape, my attacker broke my jaw. I now cannot eat or swallow properly.” or “I was diagnosed with prostate cancer while in service.” The more you talk, the more ways an examiner has to deny your claim without ever looking at the file. The less you talk – the more direct and to the point you are – the more they have to read the file.
    4. Be Polite and Courteous – and Know What the Examiner has to Deal With.
     
    I’ve said it before – there are some real shit-bird docs in the VA system. There’s the examiner that comes into the room – grumbly and angry – and tells you that you have five minutes to tell your story. There’s the examiner that will hear something different than what you said – and twist your words to fit their medical theory. And there are the examiners that just plain don’t get it – they may not have the medical training needed to draw the conclusion they are being asked to draw. Even if you are a VA C&P Examiner reading this, I think you would agree that you can think of a colleague who is not doing what they are required to do.
    Smile. Be pleasant and courteous. Know that even if this doctor concludes that there is no nexus between your military service and your condition, it will not be the end of the world. There are ways to “correct” a bad C&P Exam. 
    Your C&P Examiner has a short time to talk to you. They will have 15-20 (or more) exams daily. Each exam will be for a Veteran with at least 750+ pages of records to comb through. These examiners have something in common – they work in an overburdened system that overloads them with information and gives them minutes to sort through it. Sometimes they will have to draw conclusions about complex conditions they are not trained to handle. And a good bit of the time, they will make mistakes. They will get it wrong.
    It’s not the end of the world if they do. But what is essential – in the grand scheme of fixing this system – is that we treat every C&P Examiner with a modicum of courtesy and respect. Say hello. Smile. Be pleasant and courteous. Know that even if this doctor concludes that there is no nexus between your military service and your condition, it will not be the end of the world. There are ways to “correct” a bad C&P Exam. There are other types of opinions that you can use – like the Disability Benefits Questionnaire (DBQ).
    Get their name, and talk to them about their background – and after the exam, write down thorough notes about what happened – good and bad – in the exam.  What did they test? What did they measure? What body parts did the doctor look at – and not look at.
    Suppose you are going to legally attack a bad C&P Exam. In that case, you will need this information to challenge the methodology, measurements, and conclusions. And you won’t be able to do this if you start the exam on a sour note. So – above all – be courteous, civil, and concise.
     
    5. Don’t Act Like a “Professional Claimant”. 
    C&P Examiners do exams – dozens a day – every day for weeks on end. When you are exposed to this many Veterans, you start seeing patterns. Especially if you are a doctor trained to identify and analyze patterns of symptoms and limitations in a medical condition.
    Listen, C&P Examiners can spot the Professional Claimant a mile away. And if they see you as a Professional Claimant, it will taint the exam and the outcome of the exam. So resist using legalistic phrases, theories, and concepts. Talk like a human being – not a lawyer or a VSO. Tell the doctor about your symptoms. Your limitations. Have a concise statement of why you think your disability and service are related. (Take a look at the first post in this series to get an example of how to put together such a concise statement).
    And whatever you do, don’t go off on rants about the VA Process, complex legal theories, or past errors.
    The system is screwed up – we all get that. But one VA C&P Examiner isn’t going to fix the whole system or remedy every past error in your case.
    So keep it simple and basic: talk only about the symptoms and limitations of your disability, and have a one-sentence statement about nexus to tell the doctor when you are asked.
     
    6. Do NOT Advocate to – or Debate With – the C&P Examiner.
     
    C&P Examiners are doctors – not lawyers and not judges.
    Though their opinion will carry some sway – a lot of sway – with the Rater in your claim, in the end it is just an opinion.
    Let them draw their opinion.   If it is negative, or doesn’t fit the facts, there are other doctors with other opinions that the Rater or BVA can balance and weigh to find the truth.
    Do NOT try to prove your claim to the examiner.  Most Vets that do try to prove their claim end up overwhelming the C&P Examiner with facts that he or she may or may not be able to process in the moment.  They will overload them with case law and legal language – much of which is irrelevant to the Doctor.
    And remember – there is a mortal battle between doctors and lawyers. Since the first lawyer sued the first doctor, they have always had a very cat-and-dog relationship (I say this somewhat “tongue in cheek”).  If you start talking like a lawyer, you are going to shut that doctor off to understanding your medical condition, and I can guarantee that your exam will end with a negative opinion.
    Think about it in the context of your most recent job or profession – if someone walked in and started barking all this legalese while telling you how to do your job, what would your reaction be?
    You’d feel bullied or attacked. You’d feel insulted and marginalized.  You might zone out on the person talking, and miss what they are really trying to say.  Or you might do whatever you had to do to get that person out of your office, or cubicle, or maintenance bay.
    Nobody likes being bullied.  So don’t advocate your claim to the C&P Examiner – it’s not the time and place to advocate for your claim.
    It is the time to talk about symptoms and limitations – and to DRIVE the examiner back into your C-File and medical records to study the claim.
    Rather than launch into the medical and legal theory of your claim, and spend 15 minutes forcing the C&P Examiner to “zone out”, why not push them to look at the records.
    Consider this exchange:
    Doctor:  Tell me about your sleep apnea symptoms since you left the military.
    Veteran:  My medical records and claims file detail all of the symptoms – the many apneas throughout the night, my need for a CPAP, the daytime sleepiness problems from getting a good nights sleep – but the bottom line is that since service, I wake up several times each night gasping for air, and the only relief I get is when I wear this CPAP machine.
    You got your point across – succinctly.  You pushed the Examiner to look at the facts (and if she doesn’t, that will be obvious in her decision).  And you did it in a concise and courteous way.
    Bottom line – the C&P Exam is not the time to be an advocate or a lawyer.
    Keep your discussion limited to  symptoms and limitations only, and your one-liner about why you think it is service-connected.
    Far too many veterans approach their VA C&P exam like it’s a hearing or a trial. The result of this is that the VA C&P examiner acts like a lawyer and defends the VA’s position. In other words, you get an adverse – and very legalistic – VA C&P exam opinion.
    Are you ready to experience different results in your VA C&P exam? If so, then this post is just for you.  The tips and strategies in this post center on a common theme: If you want better results in your VA C&P exam, don’t lecture the examiner.  Paint a picture of how your disability affects you.
    By the way, this is the third post in a 3-part series offering tips an strategies for having a better experience in a VA C&P exam. You can read the first set of tips by clicking here, or click here and read second set of tips.
    7. Know What is “At Issue” in the VA C&P Exam.
     
    In earlier tips, I told you to talk only about symptoms and limitations, or if you had to, have a brief statement (20 seconds and 1 sentence) that explains why you think your condition is service connected.
    But this begs the question – how do you know what is going to be discussed in your VA C&P Exam?
    This comes back to knowing the 4 Pillars of a VA claim. If you don’t understand these 4 pillars, and how to prove service connection to the VA, you will struggle in your VA C&P exam and likely get poor results.
    I’ve prepared an entire video training course for you to learn everything you need to know about proving VA service connection – I recommend you start learning there. You can read about all 4 Pillars by clicking here.
    But let’s talk generally.
    Your VA C&P exam will invariably involve issues in only 2 of those pillars: diagnosis (Pillar 2), nexus (Pillar 2), or impairment rating (Pillar 3). If your exam is for a condition that has not been service connected,  there is a good chance that it is either a “nexus” exam or a “diagnostic exam”.
    Let’s talk about the diagnostic exam. Remember that the VA has a Duty to Assist?
    While I tell veterans all the time not to confuse the “Duty to Assist” with “Actual Assistance”, there is one scenario where I think the VA does a good job of assisting Veterans in their claims.
    That scenario arises if you have not yet had your medical condition diagnosed – in certain situations, the VA is required to send you for a diagnostic C&P exam to diagnose your medical condition before a decision can be made about service-connection or impairment rating.
    If, however, there is no reasonable possibility that the condition could be service-connected even if diagnosed, the VA does NOT have to send you for a diagnostic C&P exam.
    If your exam is not a diagnostic C&P exam, then you can be sure that the doctor will want to talk to you about “nexus” and the “impairment rating” criteria.
    So here’s what you should do – first, prepare your brief statement as to why you think your condition is related to military service – keep it short and sweet (see Post #1 for a great example) and remember that the goal is to force the Examiner into the C-File to study your medical and military service records.
    Next, look up the rating criteria in 38 CFR Table 4 to determine what factors the doctor will want to know when deciding on your rating percentage.  Click here to learn how to find out what your Impairment Rating criteria are.
    Focus on these symptoms and limitations in your discussion.
    Lastly, if you have enough time before your exam, prepare a summary of your medical records for the doctor to review – even if he or she already has the C-File in front of them.
    I explain exactly how to do this in my Training package – How to File a VA Claim.
    In that video, I will teach you how to assemble and organize the medical evidence that proves your claim for service connection by using my unique “VA Claim Map“.
    It’s not hard to do, and it will help you keep your claim organized.  Many doctors have really appreciated the summary of the claim that we sometimes send with our clients to C&P Exams.
    8. When you talk about your condition, paint a picture.
    When I tell my clients this tip, I tell them to think “Toilet Bowls”.
    I had a client that was going in for a VA C&P Exam to re-evaluate the impairment rating on his knee condition.
    The prior VA C&P doctors had never considered the “instability” in his knee joint when low-balling his rating in the past.  So we knew this exam would focus on the instability of the Veteran’s knee.
    In our prep for the C&P Exam, I asked my client to describe his knee instability.  Here’s the story he told me.
    “When I use the restroom at work, I cannot get off the toilet bowl without help.  I tried, but I ended up breaking the toilet paper rack because it could not support my weight without breaking.  I was laying on the floor in my own piss while my co-workers helped me stand up and get my pants on. I have this problem at home, and in public restrooms everywhere – I cannot stand up off the toilet on my own because my knee is so weak and unstable.”
    That story is particularly effective in describing problems with knee stability.
    Why?
    Because the veteran painted a picture that used a toilet bowl. Nobody can easily forget that kind of visual images.
    Now, I’m not saying to describe all your symptoms using a “Toilet Bowl” example – what I am saying is that you should paint a picture for the examiner of how the symptoms affect your daily life and work activities.
    In a claim for aid & attendance, don’t say: “I need help getting dressed”.  Instead say: “My 16 year old daughter has to help me zip my pants every morning because my Parkinson’s prevents my fingers from being able to work my own zipper.”
    In a claim for PTSD rating, don’t say: “I have trouble getting along with co-workers”.  That’s not a picture – it’s just a statement that every other Veteran is probably telling the same examiner.  Paint the picture, and say: “I spend 2 hours a day hiding in the bathroom at work on the floor of the handicapped stall because I’m so scared of being around other people with my PTSD.”
    See what I’m saying?
    Don’t state symptoms. Paint a picture of how they impact your daily living – especially in your home, social and work lives.
    But be careful, though – don’t embellish. Everyone can spot someone engaging in self-serving hyperbole or exaggeration (you know the type – in the military we called them “Bulls**t Artists”).
    Just describe the problems your symptoms are giving you in your daily living and working activities by painting a picture of when and how often they surface.
    9. Get the Doctor’s name and a Copy of your VA C&P Exam.
     
    I’ve shared this tip before – when the exam is done, ask the Doctor for his/her business card – or just their name if you can.  Be friendly about it – not confrontational.
    Why do you want to do this? Because the Veterans Court has said that unless you challenge a doctor’s credentials, you are allowing the VA to presume that they doctor was competent and the exam was adequate.  So, get the doc’s name.  Then read up on how to challenge the doctor’s credentials in a Notice of Disagreement if your VA &P Exam comes back adverse or negative.
    And then – I cannot stress this enough – get a copy of the C&P Exam.
    Before the Ratings Decision comes out, if you can.  Here’s how to go about getting a copy of the C&P Exam using the Freedom of Information Act (FOIA).
    10. After the VA C&P Exam – Write Down your Notes.
     
    A growing issue in the arena of veterans benefits is the adequacy of the exams that VA C&P Examiners provide.
    You may not have a lawyer now, but if you do someday, it will be incredibly helpful to your attorney to know the step-by-step process of what happened in your VA C&P Exam.
    This is particularly true in a VA C&P Exam to rate a knee injury: the doctor must consider so many things (range of motion, instability, functional loss, pain, flareups, and more) that knowing what the doctor did and did not ask you to do during a VA C&P exam can be critical to challenging it later.
    What tests did the Doctor perform?
    What questions did he ask?
    Did she use any tools or instruments to take any measurements?
    After you leave your exam, take 20 minutes, sit down, and write – to the best of your recollection – a step by step of what happened in the exam.
    Doesn’t need to be perfect.
    Doesn’t need to have every word. Just enough for someone to look at later and assess whether the tests that the Doctor did – if they did any at all – were adequate to achieve the purposes of the exam.    Just write the key facts of what happened, what was measured, and what tests were performed.
    If you are feeling particularly lawyerly, type your notes into a Sworn Declaration like this one, and sign and date it the day of the exam.
    Tuck it away in your records and then, if your attorney or representative needs it later, you have a document contemporaneous to the exam that discusses what happened and didn’t happen.
    This will make your statements about the inadequacy of the exam years down the road far more credible – because they weren’t blurred by time or memory bias.
     

    Tbird
    If you reach 100% - Permanent and Total, more benefits are available to you. This is by no means an extensive list. Be sure to check your state benefits.
    Benefits
    Check your state's veterans benefits here. Dental treatment for 100% disabled veterans benefits. Educational Assistance for Dependents: (under chapter 35) Must be rated a 100% disabled veteran by the VA. Civilian health and medical program for dependents/survivors (CHAMPVA). Must be rated a 100% disabled veteran by the VA. Specially Adapted Homes Veterans Mortgage Life Insurance: Decreasing term mortgage insurance up to $90,000 for veterans who have received a Specially Adaptive Housing grant and have an existing mortgage. Waiver of cost of Service Disabled life Insurance: an additional $20,000 of life insurance at cost to the veteran. Veterans must have applied for insurance within two years of the initial disability rating or within two years of a new disability rating. An increase in a disability rating does not qualify as a new disability. Commissary and Exchange privileges for veterans and dependents: The veteran must request a letter from the VA specifying the veteran is in receipt of 100% disability and then applies for a military ID card at the nearest ID card issuing facility. Emergency treatment in non-VA facilities: if VA facilities are not available. Annual Eye exams and prescribed eyewear Specially Adapted Housing (SAH) Grant
    SAH grants help Veterans with certain service-connected disabilities live independently in a barrier-free environment. SAH grants can be used in one of the following ways:   Construct a specially adapted home on land to be acquired Build a home on land already owned if it is suitable for specially adapted housing Remodel an existing home if it can be made suitable for specially adapted housing Apply the grant against the unpaid principal mortgage balance of an adapted home already acquired without the assistance of a VA grant Special Housing Adaptation (SHA) Grant
    SHA grants help Veterans with certain service-connected disabilities adapt or purchase a home to accommodate the disability. You can use SHA grants in one of the following ways:   Adapt an existing home the Veteran or a family member already owns in which the Veteran lives Adapt a home the Veteran or family member intends to purchase in which the Veteran will live Help a Veteran purchase a home already adopted in which the Veteran will live Eligibility
    Suppose you are a service member or Veteran with a permanent and total service-connected disability. You may be entitled to a Specially Adapted Housing (SAH) grant or a Special Housing Adaptation (SHA) grant.   Read more at the VA Website. Discuss this topic on our forum.

    Tbird
    Everything Veterans Affairs does with your service-connected disability compensation claim is governed by law. You may want to bookmark this page as a reference as you proceed with your claim. It can be a bit daunting. Just remember, the U.S.C. is the law, the C.F.R. is how they interpret the law, and last but certainly not least is the V.A. adjudication manuals, which is how they apply the law. The law's section covering veteran's benefits is Title 38 in the U.S.C. The C.F.R. is usually written 38 C.F.R. or something similar; V.A. frequently requested manuals are listed below.
    U.S.C. United States Code U.S.C.A. United States Code Annotated U.S.C.S. U.S. Code Service C.F.R. Code of Federal Regulations United States Code is the law, and the U.S.C. is the government's official copy of the code. The U.S.C.A. contains everything printed in the official U.S. Code but includes annotations to case law relevant to the particular statute. Like the U.S.C.A., the U.S.C.S. contains everything printed in the official U.S. Code but includes annotations to case law relevant to the particular statute. The C.F.R. is the interpretation of the law.         VA M-21 Compensation and Pension Manual VA M-21-4 C & P Authorization Procedures VA M28-3 Vocational Rehabilitation Internal Control in Vocational Rehabilitation and Counseling  

    Tbird
    VA Disability Claims Glossary will aid you as you pursue your VA Claim. There are words, acronyms, abbreviations, and more...the VA has its own language.
    VA Disability Claims Glossary
    VA Disability Claims When searching for information, it’s important to get the acronyms right.
    FR is Federal Register. CFR is the Code of Federal Regulations. U.S.C. is the United States Code. Pub. L. is Public Law. Stat. is U.S. Statutes at Large. E.O. is Executive order. Proc. is Proclamation sec. is a section of a Public Law or the United States Code Advance on the Docket A change in the order in which an appeal is reviewed and decided – from the date when it would normally occur to an earlier date.
    ALJ Administrative Law Judge
    AOJ Agency of Original Jurisdiction
    Appeal A request for a review of an AOJ determination on a claim.
    Appellant An individual who has appealed an AOJ claim determination.
    Axis Multi-axial systemThe DSM-IV organizes each psychiatric diagnosis into five levels (axes) relating to different aspects of disorder or disability:
    Axis I: Clinical disorders, including major mental disorders and learning disorders Axis II: Personality disorders and mental retardation (although developmental disorders, such as Autism, were coded on Axis II in the previous edition, these disorders are now included on Axis I) Axis III: Acute medical conditions and physical disorders Axis IV: Psychosocial and environmental factors contributing to the disorder Axis V: Global Assessment of Functioning or Children’s Global Assessment Scale for children and teens under the age of 18 BMAO Board medical advisor opinion
    Board The Board of Veterans’ Appeals.
    Board Member, An attorney appointed by the Secretary of Veterans Affairs and approved by the President, who decides veterans’ benefits appeals.
    Board of Veterans’ Appeals The part of the VA that reviews benefit claims appeals and issues decisions on those appeals.
    BVA Board of Veterans Appeals
    BVA Hearing A personal hearing, held at the BVA office in Washington, D.C., or a regional office, is conducted by a member of the Board. A BVA hearing can be held via videoconference from some regional offices. Also, see Travel Board Hearing.
    C & P Compensation and Pension
    C-FILE VA Claims Folder
    CFR Code of Federal Regulations
    Claim A request for veterans’ benefits.
    Claim Number A number assigned by VA that identifies a person who has filed a claim; often called a “C-number.”
    Claims File Same as claims folder.
    Claims Folder The file containing all documents concerning a veteran’s claim or appeal.
    Court of Veterans Appeals An independent court that reviews appeals of BVA decisions.
    COVA U.S. Court of Veterans Appeals
    CUE Clear and Unmistakable Error
    Decision The final product of BVA’s review of an appeal. Possible decisions are to grant or deny the benefit or benefits claimed or to remand the case back to the AOJ for additional action.
    Determination A decision on a claim made at the AOJ.
    Docket A listing of appeals that have been filed with BVA. Appeals are listed in numerical order, called docket number order, based on when a VA Form 9 is received by VA.
    Docket Number The number assigned to an appeal when a VA Form 9 is received by VA. By law, cases are reviewed by the Board in docket number order.
    DRO Decision Review Officer
    DSM IV Diagnostic and Statistical Manual of Mental Disorders 4th Edition
    DSM 5 Diagnostic and Statistical Manual of Mental Disorders 5th Edition
    EAJA Equal Access to Justice Act
    En banc In the bench. Full bench. Refers to a session where the entire membership of the court will participate in the decision rather than the regular quorum. In the U.S., the Circuit Courts of Appeal usually sit in panels of judges, but for important cases, they may expand the bench to a larger number when they are said to be sitting en banc.
    File To submit in writing.
    FOIA Freedom Of Information Act
    GAF Global Assessment of Functioning Scale (Use of GAF Score ceased in 2014 with the publishing of the DSM 5)
    GOE Gathering of Evidence on eBenefits.
    Hearing A meeting, similar to an interview, between an appellant and an official from VA who will decide an appellant’s case, during which testimony and other evidence supporting the case is presented. There are two types of personal hearings: Regional office hearings (also called local office hearings) and BVA hearings.
    HISA Home Improvement and Structural Alterations Program
    IFP In Forma Pauperis In the character or manner of a pauper. Describes permission given to a poor person (I.e., indigent) to proceed without liability for court fees or costs. An indigent will not be deprived of his rights to litigate and appeal: if the court is satisfied with his indigence, he may proceed without incurring costs or fees of court.
    IG Inspector General
    Infra Below, under, beneath, underneath. The opposite of supra, above. Thus we say primo gradu est – supra, pater, mater, infra, filius, filia: in the first degree of kindred in the ascending line, above is the father, and mother, below, in the descending line, son and daughter.
    Issue A benefit sought on a claim or an appeal. For example, if an appeal seeks a decision on three different matters, the appeal is said to contain three issues.
    IU Individual Unemployability
    Local Office Hearing A personal hearing conducted by an RO officer. A regional office hearing may be conducted in addition to a BVA hearing.
    Member of the Board, An attorney appointed by the Secretary of Veterans Affairs and approved by the President, who decides veterans’ benefits appeals.
    Motion A legal term is a request that some specific action is taken.
    Motion to Advance on the Docket A request that BVA reviews and decide on an appeal sooner than when it normally would be based on the appeal’s docket number order.
    Motion to Reconsider A request for BVA to review its decision on an appeal.
    New and Material Evidence
    a. A claimant must submit “new and material” evidence to reopen a previously disallowed claim.
    (1) To qualify as “new” evidence under 38 CFR 3.156, evidence, whether documentary, testimonial, or in some other form, must be submitted to VA for the first time. For example, a veteran injured while on duty may not have realized immediately that the condition required medical attention and may have sought treatment later that evening from a private physician. A compensation claim might later be denied if the service medical records contain no mention of treatment for the condition. Should the claimant subsequently submit proof of treatment by the civilian physician, that information would constitute new evidence on which the claim could be reopened?
    (2) A photocopy or other duplication of information already contained in a VA claims folder does not constitute new evidence since it was previously considered; neither does information confirming a point already established, such as a statement from a physician verifying the existence of a condition which has already been diagnosed and reported by another physician. Even though such a medical evaluation is from a different doctor, it offers no new basis on which the claim might be reopened unless it contains new information, such as evidence that the condition first manifested itself earlier than previously established.
    b. In order to be considered “material” under 38 CFR 3.156, the additional information must bear directly and substantially on the specific matter under consideration.
    (1) For example, if VA has previously determined that a back condition claimed by a World War II veteran is not service-connected, evidence that the claimant received treatment shortly after release from active duty might be considered new and material if the VA had previously been unaware of that treatment. However, information addressing only the current severity of the condition submitted now, over 40 years after service, may not have a bearing on the issue of whether the condition was incurred or aggravated during military service and does not warrant reopening the prior claim.
    (2) Statements and affidavits attesting to the claimant’s good character since his or her release from active duty are irrelevant if the issue is the character of the claimant’s military service, but any new information offering mitigating circumstances for an action that resulted in an “other than honorable” discharge would address the specific issue under consideration and would warrant reopening the claim.
    (3) A medical opinion is not material if it relies on historical facts which are wholly inaccurate.
    c. A determination by VA that information constitutes “new and material evidence” means that the new information is sufficiently significant, either by itself or in connection with evidence already of record, that it must be considered in order to decide the merits of the claim fairly. It does not mean that the evidence warrants a revision of a prior determination.
    d. A decision not to reopen a claim because the evidence submitted is not new and material is an appealable decision. The claimant must be furnished notice of procedural and appellate rights.
    NOA Notice of Appeal
    NOD Notice of Disagreement
    Notice of Disagreement written statement expressing dissatisfaction or disagreement with a local VA office’s determination on a benefit claim that must be filed within one year of the date of the regional office’s decision.
    NVLSP suggests adding this to the I-9 form- usually, there is enough space under the hearing questions on the I-9 form. “I take exception to and preserve for appeal ALL errors the VARO may have made, or the Board hereafter could make in deciding this appeal. This includes all legal errors, all factual errors, failure to follow M21-1, all due process errors, and any failures to discharge the duty to assist as a violation of basic VA laws and regulations within 38 USCS and 38 CFR.”
    NSLI National Service Life Insurance
    NSO National Service Officer
    Per Curiam By the court. A phrase used to distinguish an opinion of the whole court from an opinion written by any one judge. Sometimes it denotes an opinion written by the chief justice or presiding judge or a brief announcement of the disposition of a case by the court not accompanied by a written opinion.
    PFD Preparation For Decision on eBenefits
    PL Public Law
    POA Power of Attorney
    PTSD Post Traumatic Stress Disorder
    Regional Office A local VA office; there are 58 regional VA offices throughout the U.S. and its territories.
    Regional Office Hearing A personal hearing conducted by an RO officer. A regional office hearing may be conducted in addition to a BVA hearing.
    Remand An appeal returned to the regional office or medical facility where the claim originated.
    Representative Someone familiar with the benefits claims process who assists claimants in preparing and presenting an appeal. Most representatives are Veterans’ Service Organization employees who specialize in veterans’ benefits claims. Most states, commonwealths, and territories also have experienced representatives to assist veterans. Other individuals, such as lawyers, may also serve as appeal representatives.
    RO Regional Office
    RO Hearing A personal hearing conducted by an RO officer. A regional office hearing may be conducted in addition to a BVA hearing.
    ROA Record on Appeal
    SC Service Connection
    SMR Service Medical Record
    SOC Statement of Case
    SSA Social Security Administration
    SSDI Social Security Disability Income
    SSOC Supplemental Statement of Case
    Statement of the Case Prepared by the AOJ is a summary of the evidence considered, as well as a listing of the laws and regulations used in deciding a benefit claim. It also provides information on the right to appeal an RO’s decision to BVA.
    Substantive Appeal A completed VA Form 9.
    Supplemental Statement of the Case A summary, similar to a SOC, that the VA prepares if a VA Form 9 contains a new issue or presents new evidence and the benefit is still denied. A Supplemental Statement of the Case will also be provided after an appeal is returned (remanded) to the RO by the Board for new or additional action.
    TDHR Texas Department of Human Resources
    TDIU Total Rating Based on Individual Unemployability
    Travel Board Hearing A personal hearing conducted at a VA regional office by a member of the Board.
    United States Court of Veterans Appeals An independent court that reviews appeals of BVA decisions.
    USC United States Code
    VA Veterans Administration
    VA Form 9 This form, which accompanies the SOC, formally initiates the appeal process.
    VAMC Veterans Administration Medical Center
    Veterans’ Service Organization, An organization that represents the interests of veterans. Most Veterans’ Service Organizations have specific membership criteria, although membership is not usually required to obtain assistance with benefit claims or appeals.
    VJRA Veterans’ Judicial Review Act
    VRO Veterans Administration Regional Office
    VSO Veterans’ Service Organization
    Well Grounded A well-grounded claim requires three elements: (1) a medical showing of a current medical condition; (2) lay or, in certain circumstances, the medical evidence of disease or injury in service; and (3) medical evidence showing a nexus between the asserted injury in service and the current disability. Where medical evidence is required, medical journal articles alone will generally not suffice unless they are enhanced by a physician’s opinion stating that the current disability was related, is likely to be related, could be related, or even possibly was related to service. A physician’s opinion need not be conclusive to establish a well-grounded claim.
    Alternatively, both the second and third elements above can be satisfied by the submission of minimum evidence (a) that the condition was “noted” during service or during an applicable presumption period; (b) that there has been post-service continuity of symptomatology (as to which lay opinion can suffice; and (c) medical, or in some rare circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.
    Writ of Mandamus: A writ of mandamus is an order issued by a court to compel an agency to act on a decision that has been unreasonably withheld. It is used in the VA context when the VA does nothing on a claim after you have asked that it be decided. It cannot be used to compel a particular result — say, service connection — only that the VA go up or down on it.

    Tbird
    Be clear in VA Disability Claims. If the VA needs to ask for clarification, it just slows the process.
    I want to share some insight on how veterans can help themselves get their claims through the system as quickly as possible. I will also share some of my frustrations with the many system-clogging claims that I receive and must address.
    First, here’s some general info on claims processing steps in my office: Next, for claims, the veteran’s C-file is retrieved from the files and sent to the development section. Development then sends a letter acknowledging receipt of the claim and lists the claims. This letter should also include the release of information form(s) 4142 so that private medical records (not VAMC) that the veteran says are relevant to the claim can be obtained. When the veteran returns the signed forms, the VA contacts the care provider by mail requesting the records. Sometimes, we receive no response and must request the records again. This also delays the decision process. Please be aware that many VA Regional Offices, including mine, receive thousands of pieces of mail every day. Each of these must be stamped with the date received. This takes time. 
    When all records are received, or it is determined that records are not obtainable, the claim goes to the Rating Board.
    1. Hints I hope are helpful:
    Be clear about what you are claiming. VA policy says that we must respond with a letter acknowledging and listing your claimed conditions or conditions for which you are claiming an increase. If we need to ask for clarification, it just slows the process. An unclear claim is “nerve condition.” This could mean nerve damage or a mental condition. Please be specific. Put your claimed conditions where they can be found at the beginning. The development people are buried in paper. A rambling explanation with claims hidden in a lengthy text can get missed. I can’t count the number of times that I’ve had to send a claim back to the development section for another letter to the veteran acknowledging the missed claim. Another delay. I understand that some veterans cannot afford to pay for copies of their private medical records. However, if at all possible, include copies of relevant medical records with your claim. It really does speed the process. We have to give the doctor or hospital 60 days to respond to our request before sending a second request. They have 30 days after that. If they don’t respond, we do no more because it is ultimately the veteran's responsibility to provide relevant private records. Relevant is the key. I go through every piece of paper sent in support of the claim. If, for instance, you claim knee problems, your psychiatry and gynecologist records, billing/insurance statements, etc., are not needed, they just slow my ability to decide the claim. More is not better; relevant is. Help us to help you. Do get copies of your service medical and personnel records when you are discharged or from the National Personnel Records Center (NPRC). If VA has them, request copies. It’s free, folks. It just takes a bit of effort on your part. Yes, the VA and other agencies do lose/misfile records. It stinks, but this is the reality of any monstrously huge agency such as the VA and NPRC. Without these records, my hands are tied. I may personally believe you, but I must have in-service medical evidence for most claims. Don’t send in additional claims before you get a decision on the initial or increased claim. Depending on the issues, this can cause the processing of your claim to be sent back to the beginning. 2. Frustrations:
    Think before you claim. Is this really a disability? Is this a condition that occurred in service? I must address each claimed condition no matter what it is. We have daily production requirements. Therefore, a claim with numerous issues, especially meritless ones (more on that later), tends not to get handled as quickly. Our office processes 600-700 claims per week. We return to work on Monday, only to find many or more new claims. Most of us are hard workers who care about the quality of our decisions. It is frustrating to be accused of delay tactics when the sheer volume of claims and the complexity of many claims make it impossible to schedule a VA exam or render decisions as quickly as the veteran would like. I apologize to you. I’m pedaling as fast as I can Most veterans are sincere and want only what they deserve. Some are in desperate financial shape and are hoping we can help. My heart and my best efforts go out to them. Others may not realize a claimed condition is not a disability. Others… Here are just a few examples of some disability claims that I have received that cause a slowdown in an already overloaded system: compensation for a venereal disease contracted and cured in 1971, abnormal PAP smears (weird cells but not malignant or showing other diseases); tubal ligation, circumcision, vasectomy (the last 3 are voluntary: and unless there were medical complications are not disabling); exposure to local people; my wife’s miscarriage; numbness of the legs due to spinal anesthesia administered in the 1960s (this from a veteran serving a life prison sentence. No spinal anything in service: but the prison treatment records show diabetes with leg neuropathy); claims for injuries, medical conditions, and diseases that occurred long after the veteran left service (that are not presumptive, i.e., Agent Orange, radiation-related); claims for medical problems that occurred while a dependent spouse. Veterans working for the VA do NOT have their disability claims rated by the Regional Office where they work. Employee veterans do not even have access to our VA files. They are stored at another VA office. And I can personally attest that military veteran VA employees do not get preferential treatment for their claims. In my experience and others in my office, we go through the same process as other veterans. The difference is that we know what is required to decide a claim more quickly. I’m glad to share this with you and hope it helps.

    Tbird
    Caluza Triangle – Caluza vs Brown defined what is necessary for service connection. See COVA– CALUZA V. BROWN–TOTAL RECALL
    This has to be MEDICALLY Documented in your records:
    Current Diagnosis.   (No diagnosis, no Service Connection.) In-Service Event or Aggravation. Nexus (link- cause and effect- connection) or Doctor’s Statement close to: “The Veteran’s (current diagnosis) is at least as likely due to x Event in military service” This is also known as the “Hickson Elements” for a later case. Why you need to know: If all three of these things are not documented in your medical and service records, you will need to obtain this documentation before getting service connected. This applies whether you applied last week or 10 years ago.
    Note:  Secondary Service Connection and Presumptives are a little easier.  If you have a diagnosis, and a doctor says that your diagnosis is at least as likely as not due to your (service-connected condition), then you need not AGAIN establish an in-service event or aggravation.    A presumptive Service connection means if you meet the applicable criteria, your condition is “presumed” to be caused by military service.  You will still need a current diagnosis, but you may get a bye on the nexus if you meet the requisite criteria for presumptive conditions.
     
    Hickson Elements –In order to establish a service connection for the claimed disorder, there must be: 
    1. medical evidence of a current disability;
    2. medical, or in certain circumstances, lay evidence of the incurrence or aggravation of a disease or injury in service or during the presumptive period; and
    3. medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999).
    From VA.gov
     
     
    More on Caluza Triangle from member Broncovet:

    Tbird
    When a Veteran starts considering whether or not to file a VA Disability Claim, they tend to ask many questions. Over the last ten years, the following are the 14 most common basic questions I am asked about when it comes to filing Veterans Affairs Disability Claims. [Reprinted here with permission from Veterans Law Blog] 
    1. What benefits do you get from a VA Disability claim?
    There are several major categories of VA benefits you can get when you file and win VA Disability claims. You should look at the VA’s “derivative benefits matrix” to see what other VA benefits you may be eligible for from the VA.
    CATEGORY 1: Non-Service Connected Pension. These benefits are available to “wartime” veterans with no or low income due to non-servive connected disabilities. The calculation of the amount of the pension can be very difficult, so reach out to any attorney if you have been denied or feel like the VA didn’t calculate the pension correctly.
    CATEGORY 2: Education Benefits. There is a wide array of VA educational benefits available to veterans seeking additional education, from the GI Bill to Dependents Educational Assistance and additional monthly compensation for dependents in college. Not only should you look at the VR&E benefit in Category 5, but you should also evaluate your eligibility fo
    CATEGORY 3: Survivor benefits. The VA provides many programs to assist veterans' spouses, dependents, survivors, and caregivers. You can find a rather thorough list on the VA’s website.
    CATEGORY 4: Health Care benefits. VA Healthcare is available to all veterans, with more disabled veterans (and veterans in special groups) getting higher priority access to care. You can learn more about what VA healthcare is and what it covers by clicking here. In some cases, your dependent, spouse, or survivor may be eligible for CHAMP-VA coverage.
    CATEGORY 5: Employment Benefits. This category involves benefits such as access to the VA’s Vocational Rehabilitation program (now called VR&E, for Vocational Readiness & Employment) services to help with job training, employment accommodations, resume development and job-seeking skills coaching. You might also be eligible for help starting your own businesses or getting help with independent living services if you are severely disabled and unable to work in traditional employment. Veterans with a service-connected disability have access to a 10-point federal employment hiring preference.
    CATEGORY 6: VA Disability claims for “Service Connected” compensation benefits. It is this sixth category of benefits that is the focus of this post – and the focus of the Veterans Law Blog since 2007. In this category of benefits, veterans receive monthly compensation for the impairment of earning capacity that results from diseases, conditions, and disabilities that had their origin in military service.
    (Note that you do not need to show that military service CAUSED the disability – Congress long ago recognized that Veterans should get benefits even if a disease or disability that wasn’t caused BY service has its origins IN service.
    When it comes to VA Disability claims for service-connected disabilities, the primary benefit is financial.
    Once you prove to the VA that your current medical condition, disease, or disability is related to your military service, they will assign a percentage of disability to that condition – using a complicated table and formulas.   That percentage of disability translates to a monthly dollar amount.  10% equals one amount….20% another amount… and so on and so forth. You can see the 2021 VA disability ratings by clicking here.
    You can take a look at the current VA Disability claim compensation amounts by clicking here.
    In addition to the basic rates of compensation mentioned above, you can get additional compensation for different scenarios that you raise in your VA Disability claim. The VA, in fact, has a legal duty to maximize a veteran’s benefits in VA disability claims by broadly construing disability compensation claims and awarding as much compensation as the facts and evidence support.
    The best place to begin a search for these benefits is to look at the VA Benefits Eligibility Matrix to see if you are eligible for what the VA calls “derivative benefits” — benefits that derive from VA disability compensation or even a non-compensable service-connected disability rating.
    Here are just a few (you can read about even more by clicking here)
    A Veteran who has a certain percentage of disability ratings for multiple disabilities can be eligible for additional Special Monthly Compensation.  This Special Monthly Compensation is also available to Veterans with certain disabilities that limit the use of, or that resulted in the loss of, their extremities, their reproductive organs, and organs of special sense (vision, etc). Some of these benefits can be substantial – like SMC(t) for veterans with a TBI who have difficulty caring for themselves (or whose family has difficulty caring for them). Veterans who are unable to work because of their service-connected disabilities are entitled to a 100% total rating under a benefits program called Total Disability for Individual Unemployability, or TDIU. Veterans who need special aid and assistance with certain activities of daily living are entitled to an additional amount of compensation. And Veterans with a spouse or certain dependents are entitled to higher rates of compensation as well. There are certain vocational rehabilitation benefits available to Veterans with service-connected disabilities. The total percent rating of your  service connected disabilities can play a role in the ease you get VA Healthcare or the Priority Group you are assigned to. There are grants available for special adaptations to housing or automobiles that can grow out of your service-connected disabilities. Survivors of Veterans are entitled to non-service connected survivors’ pensions – also limited to the lowest-income survivors. These survivors are typically spouses or children, but in some cases, include parents and adult children who were permanently incapable of support before they turned 18. 2. How do I file a VA Disability claim?
     The VA’s answer to this question is found by clicking here. It used to be that you could file a VA Disability claim for a service connected condition, disease or disability just by writing your claim on a piece of paper – a famous anecdote that floats around the Veterans’ community is the veteran who  wrote his claim on a square of toilet paper while in prison.
    This is no longer the case: filing a VA Disability claim has, like many other things in this world, become increasingly complicated.
    Generally, filing a VA Disability claim requires a series of actions:
    Step 1: Filing Phase
    You can first file an informal claim for benefits using the required “intent to file” VA Form.  If you formalize your claim within one year of that informal claim, the VA treats your informal claim as a formal claim.
    There are currently two claims & appeals processes. The legacy system covers cases where the veteran received a VA Ratings Decision before February 19, 2019 (and did not opt into AMA). The AMA Modernized Appeal system covers cases where the veteran received a VA rating decision dated after February 19, 2019. The system you are in primarily controls the process the VA uses, and, for the most part, the laws pertaining to service connecting a disability are largely the same.
    Step 2: Development Phase
    You can let the VA develop the evidence to support your claim – officially, they have a Duty to Assist the Veteran in this development of certain claims in limited situations.
    Or, you can be more proactive and develop your OWN claim, using the three types of evidence common to VA disability claims and appeals.  Theoretically, these claims are supposed to be decided more quickly, and for the most part, they are.  But by developing your own claim and using the knowledge, information, and tools I share on the Veterans Law Blog, you can set your claim up for more thorough decisions, more proper decisions, quicker decisions, and….worst case scenario, if you have to appeal, a better chance at winning your claim on appeal.
    Step 3: The Decision Phase
    In this phase, the VA will decide that there is possible merit to your VA Disability claim for service connection of one or more conditions.
    In most scenarios, they will send you to a C&P (Compensation & Pension) Examiner, who is, in theory, a medical doctor who will decide if your diagnosed condition is related to your military service and how bad your condition is, percentage-wise.
    The VA might, before or after that review, issue a denial or a grant of benefits that is supposed to address a few questions, what I call the ‘4 Pillars’ of a VA Claim:
    Pillar 1: Are you eligible to file a VA Disability claim for compensation benefits
    Pillar 2: is the medical condition – or conditions – in your VA Disability claim related to your military service? (This pillar is often called the “service connection” or “nexus” element of your VA Disability claim)
    Pillar 3: To what degree does your disability impair your ability to seek and hold work, or engage in average daily living activiites? I call this pillar the “Impairment Rating”.
    Pillar 4: What effective date are you entitled to (it is the effective date that governs how far back in the past your benefits will be retroactive).  Some Veterans call this “back-pay” or “past-due benefits”, and depending on how long you have been battling the VA, they can often go back decades.  My colleague at another law firm won a case for a Veteran with a service connection granted all the way back to the 1950s, for example.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         
    Step 4: The Administrative Appeal Phase.
    If you are not satisfied with the VA’s decision in step 3, you can appeal.
    How you appeal has recently become very complicated. As of February 2019, the VA introduced a new appeal process called the Modernized Appeal system (or AMA), replacing the old “Legacy Appeal system.
    You can read about the Legacy Appeals process by clicking here – there is a TON of information on the Veterans Law Blog® for those veterans who remain in the Legacy Appeals system.
    You can read about the AMA appeals process by clicking here. As we learn more about this relatively new process, the Veterans Law Blog® will share what we learn.
    Under the Legacy Appeals process, the goal was to get your denied VA disability claims reviewed by either or both a DRO (Decision  Review Officer), or to a Veterans Law Judge (VLJ) at the  BVA (Board of Veterans Appeals). To do the latter, you had to  “perfect your appeal” by filing several forms in a particular sequence and on a specific timeline. Under the Legacy system, you could then get a BVA hearing: an in-person hearing in DC, during a video conference hearing from a VA facility near you, or waive the hearing and submit a “brief” with “exhibits” and have the VLJ review your claim “on the record” before it. The BVA Judge could do one or more of the following – reverse, remand, grant, or any combination of those 3. By far, a combination of the 3 is most common. After that, these are the different things the BVA VLJ can do, in order of most to least common:
    Remand the claim for the development of more evidence; Deny your appeal (also known as affirming the VA denial of your VA Disability claim); Grant your appeal (also known as reversing the VA Denial of your VA Disability claim). The VA AMA modernized appeal process is much different. You can seek a Higher Level Review, file a supplemental claim, or appeal to the BVA. If you appeal to the BVA, you have to pick one of three “hearing” lanes. The BVA judge cannot remand except in incredibly limited scenarios.
    Step 5: The Court Appeal Phase
    If you are not satisfied with your BVA Decision, so long as it is not a remand, you can appeal to the Court of Appeals for Veterans Claims (aka, the “CAVC” or the “Veterans Court”).  That court only decides whether a BVA decision is proper under the law or properly applied law to fact….it cannot make factual findings.
    On average, between 70-80% of BVA Decisions contain a reversible or remandable legal error, so if you have a BVA Decision, please talk to an attorney with experience at the Veterans Court to discuss appealing it.
    Veterans do not pay out-of-pocket for lawyers at the CAVC…if the Veteran wins at the CAVC, the VA has to pay the lawyer out of IT’S own pocket and NOT out of the Veteran’s past-due benefits.
    The CAVC can do any of the following: affirm (uphold) a BVA Decision, reverse (reject) a BVA decision, vacate (erase) a BVA decision, and remand (send a decision back to the BVA for repair of legal errors.  It can also combine 2 or more of those types of relief, depending on the case.
    Step 6: Judicial Review phase
    If you are not satisfied with your CAVC Decision, you have a limited opportunity for judicial review at the Federal Circuit Court of Appeals (Fed Circuit) and then the  Supreme Court of the United States.
    The Federal Circuit only has the ability to decide PURE questions of law…I’d be willing to bet that 80-90% of Fed Circuit decisions in Board cases are “Rule 36’s”… decisions without a written opinion, typically because the Court does not have jurisdiction over the appeal.
    Getting review at the Supreme Court is much harder, and appeals to both courts can be very expensive….filing fees alone at the Federal Circuit cost $500 and the cost of copying and filing the brief and the record of proceedings below costs between $2,000 and $5,000….so attorneys and Veterans tend to be more conservative about appeals to these courts.
    3. When do I file a veterans benefits claim?
    Ideally, you want to file your VA disability claim within a year after discharge from military service. (Learn about the one VA Program I like – the Benefits at Discharge Delivery, or BDD, Program)
    However, most conditions do not get diagnosed for years or decades after service.  In those cases, if you are filing an original VA Disability claim (i.e., for the first time), you should file at least the intent to file a claim form mentioned above as soon as you have a suspicion that your condition is related to military service.
    This protects the earliest possible effective date for your VA Disability benefits claims.
    If you are filing claims for increased compensation, then you want to file the claim for increased rating as soon as you believe your condition is getting worse.
    3. Where do I file my VA benefits claims?
    Technically, your VA Disability claim is filed with the VA Regional Office for your geographic area.
    However, you can file your VA Disability claim online through the eBenefits portal for Veterans, or, if you want to be sure that you create a paper trail for your claim to make sure it is not lost by the VA, you can file it by sending it to the Evidence Intake Center (also known as the VA’s EIC in Janesville, Wisconsin).
    5. Who can help me file and appeal claims for service-connected VA disability compensation?
    Anyone that you trust can help you with VA Disability claims.
    However, nobody can charge you a fee for filing your VA Disability claim – attorneys and accredited agents are only allowed to charge a fee for filing or helping you in your VA Disability claim after the VA has denied the claim.
    Some national organizations, like the Disabled American Veterans (DAV), Veterans of Foreign Wars (VFW) and the American Legion (Legion or AL) have what are called “Veteran’s service representatives” or VSOs that volunteer to help with filing initial VA disability claims. The quality of work or help you get varies widely, and I’ve seen both extremes: I’ve seen VSOs that do amazing work for free, and I’ve seen VSOs that pull the rug out from under their “client” or “member.
    Organizations like the Paralyzed Veterans Association (PVA) and the Vietnam Veterans of America (VVA) get consistently high marks for the work they do for their members.
    6. How long does it take to receive compensation after filing VA Disability Claims?
    The amount of time that it takes for the VA to decide a VA Disability claim can very greatly, and depends on a lot of variables: how difficult your claim is, how many conditions you include in the VA Disability claim, how well your claim is prepared, whether your claim is a Fully Developed Claim or not, how big your VA Regional Office is, etc.
    Here are some general rules:
    * If you click here, the VA provides its current time for processing claims (154 days as of the date of this writing). Keep in mind, appeals can take much, much longer, but for the most part, we are seeing most veterans get VA rating decisions on their original claims in under 6 months.
    * If you are really bored, or like looking at really small numbers on mind-numbingly complicated spreadsheets, click here to see how long claims are currently taking in your geographic region.  Pour a scotch or glass of wine…these spreadsheets are consistent with everything the VA does….hard to understand, loaded with jargon, and obvious number juggling to hide problems in the system.
    * Claims for VA disability benefits that are filed with smaller urban and rural VA Regional Offices are faster than VA Disability claims filed with larger metropolitan VA Regional Offices.
    * Once you file an appeal, it can take 3-10 years to get a decision, again, depending on variables that are too numerous to list here
    * Veterans can speed up the timeframe by filing well-developed and well-documented claims, like we teach here on the Veterans Law Blog®.
    7. How do I check the status of my VA Disability claims?
    That, right there, is the million dollar question.
    The VA will tell you to call their VA toll-free number 1-800-827-1000 to get the status. Veterans that use this approach find that they are able to enjoy their favorite hobby while waiting to talk to someone at the VA: some Veterans relax and enjoy 2-3 hours of hold “muzack”, others read the week’s newspapers or a few magazines, and others have actually written a book while waiting on hold.  If you are among the patient and lucky few that get through to a human being on the 1-800 line, here are some tips and pointers how to get more value and information out of the call.
    The VA also suggests that you check your status on eBenefits. eBenefits is a federal government site online which you log into and perform several claims-related actions, including file a claim.
    Be forewarned, though – eBenefits is a glitchy and inaccurate tool.  For example, if you log into my eBenefits account, it shows that the VA held a hearing on my VA Disability Claim 2 years before I filed it.  That’s a true story, folks.  Now that is efficiency – maybe the VA will start a new pilot program: the pre-claim denial process.
    Be careful what you see on eBenefits..it’s not always your claim status, and its not always accurate, and its rarely up to date.
    8.How are VA service-connected compensation benefits calculated?
    I wish that I could tell you that the VA simply added up your disability ratings from individual conditions to reach your total disability rating, and paid you according to that rating.
    But the VA doesn’t do it that way. They use a unique system called “VA Math” to “combine” your individual disability ratings into a total, and then they award a monthly amount of compensation that corresponds to the resulting total impairment rating.
    You can read more about impairment ratings here – Veterans have a lot more control over these ratings than they have been led to believe, however.  I teach Veterans how to improve or maximize their ratings for a TON of conditions – knee/arthritis, sleep apnea, PTSD, Tinnitus, Hearing Loss, Fibromyalgia and Chronic Fatigue, Gulf War, Migraines, Diabetes, Parkinson’s Disease and many more!
    In my 5+ hour video training course, “How to Prove the 4 Pillars of a VA Claim“, I teach Veterans how to prove the 4 Pillars of a VA Claim, including a lot of specific ways to prove the degree of disability you experience and get the highest rating possible.
    The only way to get access to this course is to become a subscriber of the Veterans Law Blog®….look at the other perks of subscribing, here.
    9. Does the VA have to pay Veterans retroactive pay (back-pay)?
    Yes, they are required by law to pay all past-due benefits.
    The question is “how far do they go back”?
    There is a whole set of rules that helps the VA decide how far back in time to go to pay retroactive benefits. These rules are called the effective date rules, and there are hundreds of them.
    There are a few general guidelines….it’s not all the rules for every effective date for every type of VA Disability Claim, but it should give you an idea how much you have NOT been told about VA disability benefits over the years.
    * In most VA disability claims, the effective date will be the LATER of the date you filed your claim and the date the entitlement arose. Click here to learn more about what that means.
    * If you file your VA disability claim within 1 year of leaving service, your effective date will typically be your date of separation from military service.
    * Claims for Increased compensation rates follow the general effective date rule, except that if you can show that the worsening of your condition started to occur BEFORE you filed your claim, you can get up to 1 year earlier.
    * In some cases, if the law changes while you are trying to prove a claim, or after you’ve been denied a claim, and your claim is granted pursuant to that change in law that made it easier for you to win (in other words, the change in law is a “claim liberalizing rule”) you may be able to get up to 1 year prior to the date of your claim as your effective date
    * If you reopen a previously denied claim by submitting New and Material Evidence, and you  win the reopened VA Disability claim based on military records, military service records, or military medical records that were previously unavailable to the VA or that the VA neglected to get in the prior claim, you can use the effective date rule in 38 CFR 3.156(c) to get an effective date of your original VA Disability claim date. (NOTE: REOPENED CLAIMS ARE ONLY AVAILABLE IN THE VA LEGACY APPEALS SYSTEM. In the AMA modernized appeals system you will need to file a supplemental claim with new and relevant evidence to revive a previously final claim.
    * If you submit New and Material (under the Legacy System) or New and Relevant evidence (under the AMA Modernized Appeals system) within 1 year of the date your ratings decision denied your VA Disability claim, your claim is “open and pending” (Legacy) or “continuously pursued (AMA Modernized Appeal system) until the VA issues a new ratings decision, and if your benefits are granted based on that new and material evidence, your effective date could be the original date of your claim. This is a risky path to take, though, because if the VA denies your claim because the evidence wasn’t New and Material, then you may have lost your original effective date if you did not file an appeal within that same year after the VA Ratings Decision.
    * If you are a “Nehmer Class Member”, meaning a veteran exposed to dioxin (aka, Agent Orange in Thailand, Vietnam, Korea, or other places), a whole set of effective date rules apply due to the VA’s settlement of a class action lawsuit in the 1980s. These are called the “Nehmer Rules”, and they can get pretty complicated pretty quick.
    * A survivor who files a claim for survivor benefits (DIC, service connection of the cause of death and substitution, for example) will get survivor benefits retroactive to the date of the Veteran’s death if they filed their VA Form 21-534 within one (1) year of the Veteran’s death. If they file the claim for accrued benefits within that year, they may be able to get retroactive benefits paid to the date of any VA Disability claim or appeal pending on the date of the veteran’s death.
    10.Are VA Disability benefits for life?
     I’ll answer this question along with #11.
    11.Are VA Disability benefits permanent?
    Generally speaking, they can be.
    If a medical condition substantially improves, the VA can propose to reduce your disability compensation benefits to different levels.  The rules that they have to follow to do this can differ depending on certain factors, but here are a few considerations…you can click here to learn more about how the VA tries to pick Veterans’ pockets by reducing benefits, and get an idea how to stop it.
    * The VA can only reduce “continuous ratings” (those that have been in effect for 20 years or more) after showing that they were awarded based on actual fraud by the veteran.
    * There are 3 types of ratings in VA Disability claims that are considered “protected” ratings, which the VA cannot reduce without showing first a “substantial improvement” in your medical condition.
    * If a VA Disability rating is considered “unprotected”, the VA can reduce it, but they have to send you notice of their intent to respond, give you an opportunity to respond and submit evidence and if you request it, provide a hearing.  The timelines on this type of reduction are pretty friendly to the VA, and pretty hard for the person filing the VA Disability claim to understand, no less follow, so be ready to move quick and do plenty of legwork to understand what is happening and how to stop it.
    * If you are incarcerated for more than 60 days, on the 61st day, the VA can reduce your VA Disability compensation to no less than 10%, and must reinstate it after your release from jail. Click here to learn more about each time of rating and how long they stay in effect.
    12.Are VA Disability benefits subject to child support?
    Yes.
    In every state that I am aware of, VA Disability benefits are considered income for the purposes of calculating child support.
    Child support laws differ in each state, so there may be nuances from state to state how much is subject to child support, particularly when a portion of your VA Disability benefits is offset by military retirement payments.  The best thing to do is get out ahead of this situation by talking to a local family law attorney and making sure you do right by your kids, state  law, and federal law.
    If you need a referral to a family law attorney in Texas or Arkansas, fill out a support ticket.  I know a lot of family law attorneys in both states and may be able to give you a couple referrals.
    13.Are my VA disability compensation benefits taxable?
    Nope.
    At least not under Federal law.  Amounts paid to Veterans or their families for education, training, subsistence allowances, clothing allowances, disability compensation and/or pension payments are not taxable by the Feds.
    As to whether these benefits are taxable at the State level, consult your state’s income tax agency, as the answer will vary state-by-state.
    14. What are the most common medical conditions that Veterans seek to service connect?
    The VA actually publishes a report of the conditions it service connects, the average ratings for each, and more. Click here to check out the report.
    If you don’t have the stomach to read MORE VA propaganda – and honestly, who can blame you – here are the Top 10 conditions that the VA reports as being part of most original VA Disability Claims (click on the links to see information published on the Veterans Law Blog about these conditions common to VA Disability claims)
    Tinnitus
    Hearing loss
    Lumbosacral or cervical strain
    Limitation of flexion, knee
    Scars, general
    Post-traumatic stress disorder (PTSD)
    Limitation of motion of the ankle
    Migraine
    Impairment of the knee, general
    Bursitis
    Here are some other conditions that I see very frequently in many a VA Disability Claim (click on the links to see information published on the Veterans Law Blog about these conditions common to VA Disability claims)
    Sleep Apnea
    Fibromyalgia
    Peripheral Neuropathy
    Diabetes
    Parkinson’s Disease
    Particulate Matter in the lungs
    Gulf War Illness (aka, Chronic Multi Symptom Illnesses)
    Traumatic Brain Injury
    What other questions do you have?
    If you have other questions about VA disability claims, the claims and appeals process, or other issues related to VA service-connected disability compensation, please type a comment below.
    I do not publish all the comments, but I do read each one and use your questions to expand this post to have the most information possible about VA disability claims.

    Tbird
    How Does VA Rate Mental Health Conditions?
    Aside from eating disorders, the VA rates all mental health conditions using the same diagnostic criteria. Mental health conditions are rated at 0%, 10%, 30%, 50%, 70%, or 100% using the VA’s General Rating Formula for Mental Disorders. These ratings are based on the social and occupational impairment level a condition presents. For example, a veteran experiencing mild symptoms or whose symptoms are well controlled by continuous medication may receive a disability rating of 10%. Veterans with more severe symptoms—such as an intermittent inability to perform the activities of daily living or suicidal ideation—may receive a 100% disability rating.
    Veterans are not required to meet all, or even any, of the criteria in a rating level to qualify for that rating. Since mental health conditions can manifest differently per individual, the VA’s rating formula for mental health conditions is not binding. Symptoms listed in each level of the rating formula are examples of the types and levels of impairment commonly found at that assigned percentage rating.
    38 CFR 4.125 Diagnosis of Mental Disorders
     
    (a) If the diagnosis of a mental disorder does not conform to DSM–5 or is not supported by the findings on the examination report, the rating agency shall return the report to the examiner to substantiate the diagnosis. Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM–5), American Psychiatric Association (2013), is incorporated by reference into this section with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other than that specified in this section, the Department of Veterans Affairs must publish notice of change in the Federal Register and the material must be available to the public. All approved material is available from the American Psychiatric Association, 1000 Wilson Boulevard, Suite 1825, Arlington, VA 22209–3901, 703–907–7300, http://www.dsm5.org. It is also available for inspection at the Office of Regulation Policy and Management, Department of Veterans Affairs, 810 Vermont Avenue NW., Room 1068, Washington, DC 20420. It is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of this information at NARA, call 202–741–6030 or go to http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_publications.html.
    (b) If the diagnosis of a mental disorder is changed, the rating agency shall determine whether the new diagnosis represents progression of the prior diagnosis, correction of an error in the prior diagnosis, or development of a new and separate condition. If it is not clear from the available records what the change of diagnosis represents, the rating agency shall return the report to the examiner for a determination. 
    (Authority: 38 U.S.C. 1155)
    [61 FR 52700, Oct. 8, 1996, as amended at 79 FR 45099, Aug. 4, 2014]
    § 4.126 Evaluation of disability from mental disorders.
    (a) When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 
    (b) When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 
    (c) Neurocognitive disorders shall be evaluated under the general rating formula for mental disorders; neurologic deficits or other impairments stemming from the same etiology (e.g., a head injury) shall be evaluated separately and combined with the evaluation for neurocognitive disorders (see § 4.25). 
    (d) When a single disability has been diagnosed both as a physical condition and as a mental disorder, the rating agency shall evaluate it using a diagnostic code which represents the dominant (more disabling) aspect of the condition (see § 4.14). 
    (Authority: 38 U.S.C. 1155)
    [61 FR 52700, Oct. 8, 1996, as amended at 79 FR 45099, Aug. 4, 2014]
    § 4.127 Intellectual disability (intellectual developmental disorder) and personality disorders.
    Intellectual disability (intellectual developmental disorder) and personality disorders are not diseases or injuries for compensation purposes, and, except as provided in § 3.310(a) of this chapter, disability resulting from them may not be service-connected. However, disability resulting from a mental disorder that is superimposed upon intellectual disability (intellectual developmental disorder) or a personality disorder may be service-connected. 
    (Authority: 38 U.S.C. 1155)
    [79 FR 45100, Aug. 4, 2014]
    § 4.128 Convalescence ratings following extended hospitalization.
    If a mental disorder has been assigned a total evaluation due to a continuous period of hospitalization lasting six months or more, the rating agency shall continue the total evaluation indefinitely and schedule a mandatory examination six months after the veteran is discharged or released to nonbed care. A change in evaluation based on that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter. 
    (Authority: 38 U.S.C. 1155)
    [61 FR 52700, Oct. 8, 1996]
    § 4.129 Mental disorders due to traumatic stress.
    When a mental disorder that develops in service as a result of a highly stressful event is severe enough to bring about the veteran's release from active military service, the rating agency shall assign an evaluation of not less than 50 percent and schedule an examination within the six month period following the veteran's discharge to determine whether a change in evaluation is warranted. 
    (Authority: 38 U.S.C. 1155)
    [61 FR 52700, Oct. 8, 1996]
    § 4.130 Schedule of ratings—Mental disorders.
    The nomenclature employed in this portion of the rating schedule is based upon the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM–5) (see § 4.125 for availability information). Rating agencies must be thoroughly familiar with this manual to properly implement the directives in § 4.125 through § 4.129 and to apply the general rating formula for mental disorders in § 4.130. The schedule for rating for mental disorders is set forth as follows: 
    9201 Schizophrenia
    9202 [Removed]
    9203 [Removed]
    9204 [Removed]
    9205 [Removed]
    9208 Delusional disorder
    9210 Other specified and unspecified schizophrenia spectrum and other psychotic disorders
    9211 Schizoaffective disorder
    9300 Delirium
    9301 Major or mild neurocognitive disorder due to HIV or other infections
    9304 Major or mild neurocognitive disorder due to traumatic brain injury
    9305 Major or mild vascular neurocognitive disorder
    9310 Unspecified neurocognitive disorder
    9312 Major or mild neurocognitive disorder due to Alzheimer's disease
    9326 Major or mild neurocognitive disorder due to another medical condition or substance/medication-induced major or mild neurocognitive disorder
    9327 [Removed]
    9400 Generalized anxiety disorder
    9403 Specific phobia; social anxiety disorder (social phobia)
    9404 Obsessive compulsive disorder
    9410 Other specified anxiety disorder
    9411 Posttraumatic stress disorder
    9412 Panic disorder and/or agoraphobia
    9413 Unspecified anxiety disorder
    9416 Dissociative amnesia; dissociative identity disorder
    9417 Depersonalization/Derealization disorder
    9421 Somatic symptom disorder
    9422 Other specified somatic symptom and related disorder
    9423 Unspecified somatic symptom and related disorder
    9424 Conversion disorder (functional neurological symptom disorder)
    9425 Illness anxiety disorder
    9431 Cyclothymic disorder
    9432 Bipolar disorder
    9433 Persistent depressive disorder (dysthymia)
    9434 Major depressive disorder
    9435 Unspecified depressive disorder
    9440 Chronic adjustment disorder 
    General Rating Formula for Mental Disorders    

    Tbird
    There have been some changes within the VA appeals process. It is no longer referred to as such; it has undergone a significant transformation and is now known as the decision review process. This change was implemented to make the process more efficient and effective for those involved.
    Suppose you disagree with a VA decision made on or after February 19, 2019. In that case, rest assured that you have multiple options available! The decision review process has been designed to provide three distinct avenues (Supplemental Claim, Higher-Level Review, or Board Appeal) for you to continue pursuing your case.
    Each option provides different advantages, and you can select the one that best aligns with your specific circumstances and needs. And the best part? If you choose an option and find that the result doesn't meet your satisfaction, you're not stuck with that outcome. You are fully entitled to try out another eligible option.
    Remember, the process may seem daunting, but you are not alone. Continue to persevere and advocate for the benefits you deserve. Keep going. You got this!
    From VA.gov VA decision reviews and appeals
     
    Request a decision review
    Decision review option: Supplemental Claim
    You can file a Supplemental Claim if you have new and relevant evidence that we didn't have when we reviewed your case before.
    Decision review option: Higher-Level Review
    Ask for a higher-level reviewer to review your case. You can’t submit new evidence with a Higher-Level Review.
    Decision review option: Board Appeal
    You can appeal to the Board of Veterans’ Appeals and have a Veterans Law Judge review your case.
    After you request a decision review
    Find out what happens after you request a decision review.
    Contested claims
    If you’re one of multiple people claiming a benefit that only one party has a right to, find out how to request a decision review.
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    Tbird
    One afternoon a few years ago, I Googled "I've had it with the VA." That simple "search" born out of utter frustration led me to "Hadit.com." And there it all started! As of two weeks ago, I'm rated 100% (long overdue). And I am still NOT done with the VA.   From Member Ping Juice Greetings: I am grateful that one afternoon a few years ago, I Googled “I’ve had it with the VA.” That simple “search” born out of utter frustration led me to “Hadit.com.” And there it all started! As of two weeks ago, I’m rated 100% (long overdue). And I am still NOT done with the VA.
    For those looking to do their research, I offer this process:
    Obtain your Military Service and Medical Records by mailing (certified, return receipt requested) an SF-180, found here: Download SF-180 You can obtain your full VA treatment records from the “release of information” window at the center where you receive treatment. Please review the CD-ROM (PDF file) for all chronic medical conditions, treatments, and diagnoses—chronicity is critical! Identify the incident, event, or situation in service that “caused” this condition. If it’s in your active duty medical records, that’s extremely valuable. If it manifests after service, you’ll need to find a way to “connect” it to service – the “nexus”. Next, search USC 38 part 4 for your CHRONIC DIAGNOSIS, found here: 38 CFR 4 Schedule for Rating Disabilities Match the conditions and rating percentage to the CHRONIC diagnosis in your medical records. Review the DBQ the C&P examiner “must” use to rate your current condition, found here: List By DBQ Form Name. Search for VA court cases on your condition(s) to understand how the VA Regional Offices will likely “rule and rate” your claim. HINT: the cases tell you what evidence supports a claim. For example, here’s a search for Sleep Apnea secondary to chronic Sinusitis: Google sleep apnea secondary to chronic sinusitis Look for evidence in these cases that would support your claim, and THEN match and find your evidence – NEVER, EVER lie! Gather all your evidence, write up a Statement in Support of Claim, found here:  Veterans Affairs Statement in Support of Claim and mail it certified return receipt requested. NUMBER every single page, make copies, and wait. Make someone sign for your mailed package – VA has NEVER lost my packages! Before you go to a C&P, review your evidence, especially the questions the Dr. will ask from the DBQ. I usually handwrite a list of the 6-7 items that support my claim. I make sure the examiner sees this. I’m so done with the VA, I walked into my last C&P with my 4″ binder and the Dr. understood I knew what is going on. A C&P exam is a LEGAL MEETING, not medical treatment.    I submitted my last three claims in July, which were fully decided correctly in six months. Help the VA help YOU! And, most importantly, never, never, never, ever give up. Be relentless! Most grateful, PJ 
    I got a request to see how I wrote Claims, so here they are:
    Hearing loss, Peripheral Vestibular Disorder, and Tinnitus. Digestive disorder. Skin disorder. VA’s 2015 Decision on these three Claims.
    STMT IN SUPPORT OF CLAIM – PERIPHERAL VEST DIS – PG-1- redacted.pdf STMT IN SUPPORT OF CLAIM – PERIPHERAL VEST DIS – PG-2 – redacted.pdf STMT IN SUPPORT OF CLAIM – PERIPHERAL VEST DIS FOLLOWED BY TINNITUS – PG-3 – redacted.pdf DBQ WITH TINNITUS – HEARING LOSS & PERIPHERAL VEST DIS – AMENDMENTS_Redacted.pdf C&P EXAMINER’S DBQ FOR EAR CONDITIONS.pdf STMT SUPPORT CLAIM – RHIODS 2014 – redacted.pdf DBQ FOR RHOIDS – FOR C&P.pdf STMT SUPP CLAIM – ECZEMA 60% – PG 1-2.pdf STMT SUPP CLAIM – ECZEMA 60% – PG 3.pdf STMT SUPP CLAIM – ECZEMA 60% – PG 4.pdf 2015 DX REDACTED FOR HADIT_Redacted.pdf

    Tbird
    The following is reprinted with the permission of Veterans Law Blog.
     
    Trust me when I tell you this: a VA Sleep Apnea disability diagnosis has little or nothing to do with obesity and neck girth. In the end, I wrote a book about how to claim and service connect the sleep apnea disability through the VA. But I also learned a few extra things that I would like to share with you about the VA Sleep Apnea Disability claim.  And that’s what today’s video is all about:
    I asked:
    Why were so many Veterans seeking service connection for sleep apnea? Why was sleep apnea affecting Veterans across all generations Why was it so hard for so many Veterans to win their VA sleep apnea disability claims? I talked to doctors (cardiologists, pulmonologists, sleep specialists, and more) about the three different types of sleep apnea disability diagnoses. I talked to hundreds of Veterans (from just about every era) and looked at dozens of their C-Files to see if I could figure out why some Veterans won their VA Sleep apnea disability claims, and others did not. I read just about every BVA Decision I could find on VA Sleep Apnea Disability appeals fo