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Charleston Law 2L > Veteran law > Flashcards

Veteran law Flashcards

1
Q

Department of VA created when by who?

A

1988, Regan Admin.

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2
Q

Is private mortgage assistance required when using GI Bill?

A

Nope.

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3
Q

DVA creation in 1988 sep. the DVA into two categories. What are they?

A
  1. DVA [benefits]
  2. DHA [healthcare]
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4
Q

Veterans ________ review: Big deal because it provided for judicial review of DVA decisions. Previously this was not permitted. [How you appeal a BVA decision]

A

Veterans Judicial Review “VJR” = Court of Appeals for Veterans claims to hear appeals from BVA decisions.

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5
Q

_____ __ _____ Appeals: “BVA”: Anytime a claim is denied, it comes through here.

A

Board of Veterans Appeals

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6
Q

Who do you appeal to when appealing BVA decision?

A

VJR - Veterans Judicial review = COAs for Veterans claims

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7
Q

BVA: Benefit of doubt goes to who?

A

The Veteran

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8
Q

What system in 2017 ended the legacy system?

A

AMA [Appeals Modernization Act]

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9
Q

What Trump act cleaned up healthcare services and allowed Veteran to go (1) out of network and (2) Get ER help without prior authorization.

A

Mission Act 2017

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10
Q

____ Act of 2022 [Biden] is the largest expansion of ‘presumed’ medical conditions. [Burn pits]

A

Pact Act

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11
Q

_____ Act: For post 9/11 combat Vets, extends time period to enroll from 5 to 10 years.

A

Pact Act 2022 [Biden]

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12
Q

Pact Act 2022: T/F) If diagnosed with one of 23 specified conditions, there is no need to prove the service connection now.

A

True

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13
Q

T/F) US Code trumps FED regs

A

True

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14
Q

All FED law must flow through and comply with what act?

A

APA Admin Procedure Act

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15
Q

________________ governs the process by which federal agencies develop and issue regulations. It includes requirements for publishing notices of proposed and final rulemaking in the Federal Register, and provides opportunities for the public to comment on notices of proposed rulemaking.

A

APA: Admin Procedure Act

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16
Q

APA categorizes into two phases. What are they?

A

Formal & Informal

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17
Q

T/F) Individual agencies such as DVA have their own judicial bodies.

A

True!

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18
Q

Do Admin law judges, such as those with VA, have to be independent from agency itself?

A

Yup.

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19
Q

T/F) VA ALJs are prohibited by the APA from engaging in any ex parte contact.

A

True

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20
Q

4 Judicial deference standards of VA admin law?

A
  1. Chevron
  2. Looper [overturned chevron]
  3. Auer
  4. Skidmore
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21
Q

“Does the Administrative Procedure Act require courts to exercise their independent judgment in determining whether an administrative agency acted within its statutory authority and not defer to the agency’s interpretation of the law merely because a statute is ambiguous?”

Case?

A

Looper bright. This overturned Chevron standard where courts would simply refer to the agency expertise on the matter and required courts to exercise their own independent judgment.

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22
Q

Herring-fishing businesses sued the U.S. Department of Commerce and other officials. They disagreed with a federal rule that required them to pay for monitoring of their fishing vessels. They said the Magnuson-Stevens Fishery Conservation and Management Act (MSA) did not allow the agency to make them pay for this. The lower courts agreed with the government, using a rule from a previous case, Chevron

A

Looper Bright. Overturned Chevron

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23
Q

What was the old standard of admin law judge review?

A

Chevron, where courts deferred to agency interpretation unless UR.

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24
Q

ROL: The Administrative Procedure Act (APA) says that courts should use their own judgment to decide if an administrative agency acted within its authority. Courts should not just agree with the agency’s interpretation of the law because the law is unclear.

A

Looper Bright

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25
Q

Chevron light = Courts defer to agency interpretation of ‘ambiguous’ decisions.

A

Auer deference

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26
Q

_____ Deference: This applies when Auer does not. “Courts here give varying deference dependent on agency expertise on matter.”

It’s based on the agency’s expertise, consistency, and the persuasiveness of its reasoning.

A

Skidmore

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27
Q

When rule-making, what act must 3 letter federal agencies follow?

A

Admin Procedure Act

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28
Q

What “book” is the code of FED regs of finalized rules?

A

CFR

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29
Q

VA CFR is?

A

38 CFR

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30
Q

VA USC is?

A

38 USC

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31
Q

AMA reworked legacy. It created 3 lanes for Vets to appeal an RO decision. What are they?

A
  1. Higher level review “HOR”
  2. Supplemental claim “SUPP” - New and relevant evidence required
  3. Notice of disagreement “NOD” - Appealing to BVA
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32
Q

What is RO?

A
  1. Regional office
  2. Rating official
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33
Q

AMA: Appealing denied claim:
_________: This is equivalent to ‘de-novo.’ No new evidence is needed for review.

A

Higher level review “HOR”

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34
Q

AMA: Appealing denied claim:
____________: Must submit new and relevant evidence.

A

Supplemental “SUPP” claim

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35
Q

AMA: Appealing denied claim:
_______________ : You disagree with decision and appeal directly to BVA.

What if BVA denies as well?

A

NOD.
Then appeal to VA COAs.

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36
Q

_________ date is the date your benefits claim dates back to. It is established by the date you filed initial claim.

A

Effective date

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37
Q

T/F) Claim denied. You seek HOR. You may have informal conference with reviewer.

A

True! Great benefit to this lane.

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38
Q

4 criteria for “Veteran” status?

A
  1. Served armed forces
  2. On active
  3. Discharged
  4. Not dishonorable
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39
Q

What case demonstrated that “Insanity” is a blanket exception to bars of VA benefits.

A

Gardner v. Shinseki

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40
Q

When RO denies a claim, how much time must pass before the determination becomes “final?”

A

One year

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41
Q

T/F) General court martial discharge usually bars entitlement to VA benefits.

Exception?

A

True. “Insanity” can overcome.

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42
Q

Per the USCVA, when is a Veteran “insane”

A

When the mental illness caused the circumstances.

43
Q

To get VA benefits for insanity, Veteran must have what?

A

Medical opinion that Veteran was “insane” as defined by VA regs, at time of incident.

44
Q

T/F) VA has much narrower definition of insanity than the military.

A

False. Much broader.

45
Q

T/F) Determination that individual was “sane” by military does not preclude the VA from later finding them insane.

A

True

46
Q

T/F) NG must be activated federally to be eligible for VA benefits.

A

True - Allen v. Nicholson

47
Q

If activated by State Governor for flood relief services that “activation” is not considered eligible for VA benefits. [T/F]

A

True

48
Q

Can full time duty in Public Health Service and NOAA count as “Active” duty?

A

Yes

49
Q

T/F) If ROTC called into summer training w/ a branch, this is active duty for training.

A

True, must be longer than 4 weeks.

50
Q

If ambiguity between CFR and USC?

A

Take it to court since Chevron standard is gone.

51
Q

What case showed that, if NG activated for state services, no benefits.

A

Allen v. Nicholson

52
Q

6 classifications of separation from service?

A
  1. Honorable
  2. Under honorable [General]
  3. Other than honorable
  4. Bad conduct
  5. Dishonorable
  6. Administrative
53
Q

OTH discharge also known as what?

A

Undesirable

54
Q

Bad conduct discharge is achieved by what?

A

General & Special court martials

55
Q

Equivalent of dishonorable for officers?

A

Dismissal

56
Q

How is dishonorable achieved?

A

General court martial only

57
Q

2 times when VA will find separation was dishonorable?

A
  1. Was DH
  2. Admin
58
Q

Statutory bars to VA benefits?

A
  1. Conscious objector [Hacksaw]
  2. Desertion
  3. AWOL [at least 180 days]
  4. Officer accepting resignation
  5. Discharge as alien
59
Q

What is a good reason to request HOR instead of SUPP claim when initial claim for benefits denied?

A

You can have informal review with RO

60
Q

President Trump’s [45-47] ____ Act in 2017 permitted Veterans to do what?

A

Mission Act2017
2) 1) Go out of network
2) Go to ER without prior authorization

61
Q

Can discharges other than honorable still get VA healthcare?

A

Yes but only for SC disabilities

62
Q

T/F) Bad conduct discharge = no healthcare.

A

True, unless Insanity exception.

63
Q

A _______ ____________ discharge is a military discharge that results from a crime that is considered to be base, depraved, or vile. Crimes that fall under this category are considered to shock the public conscience and go against the rules of morality.

Examples: Murder, Fraud, Desertion, Treason, Espionage, and Sexual assault.

A

Moral turpitude

64
Q

Statutory bars are 38USC or 38CFR?

A

38USC “US Code” = Statutory

65
Q

When does the VA typically conduct a character of service determination?

A

When discharge less than fully honorable.

66
Q

What if the VA determines individual is barred from benefit after character of service determination? Anything else VA does?

A

Secretary shall provide such individual, info regarding ability of individual to address such condition.

67
Q

T/F) VA only pulls DD214 and DD458 when determining character of service.

A

True so employ other helpful things. Buddy statements, MH records, etc.

68
Q

What is DD458?

A

Court martial charge sheet

69
Q

T/F) Period of service ending w/ disqualifying discharge normally precludes a person from eligibility for and VA benefit.

Exceptions?

A

True unless claimant served multiple periods of enlistment and not all were dishonorable.

70
Q

Regulatory CFR bars to benefits?

A
  1. Accepting UOTH discharge to avoid General court martial.
  2. Mutiny
  3. Spying
  4. Moral turpitude
  5. Willful misconduct
  6. Homo acts
71
Q

Statutory bars to benefits?

A
  1. Hacksaw
  2. AWOL [180]
  3. Deserter
  4. Dismissal
  5. Alien
72
Q

6 yr enlistment.
First 3 = Honorable
Reenlist for 6 = 9 yrs total
First 3 = honorable
Last 3 = Bad conduct

Barred from benefits?

A

No. He has completed, in the aggregate, 6 total years of honorable service meeting the original enlistment number.

73
Q

2 exceptions to the bar on VA benefits for unfavorable discharge?

A
  1. Insanity [need medical Opinion]
  2. MST
74
Q

T/F) For MST, Veteran can get free care for all physical and mental conditions related to it, regardless of discharge.

A

True

75
Q

DH discharge but it is related to MST. Barred from benefits?

A

Can still get healthcare for conditions related to MST.

76
Q

Active duty requirement for Veterans serving before Sep 8, 1980?

A

1 day qualifies for all VA benefits. No real active requirement.

77
Q

Active duty requirement for Veterans serving after Sep 7, 1980?

A

24 months of continuous active duty. [2 years]

78
Q

____ ____ : Involves [deliberate] or [intentional] wrongdoing with [wanton] reckless disregard of [probable consequences.] = Regulatory bar to benefits

A

Willful misconduct

79
Q

2 general examples of “willful” misconduct?

A
  1. Alcohol abuse
  2. Drug abuse
80
Q
  1. Primary alcohol abuse SC?
  2. Secondary alcohol abuse SC?
A

Only 2. Develops 2 to PTSD for example. Connection can be granted for this.

81
Q

3 requirements for “establishing” SC? “Caluza elements”

A
  1. Current disability
  2. In service event
  3. Medical nexus
82
Q
  1. Current disability must include _________ evidence.
A

Competent

83
Q
  1. In service event: Must include _______ opinion or ______ evidence documenting in service event. Must be “ _______________” that it occurred.
A
  1. Medical opinion
  2. Lay opinion [buddy statement]

“At least as likely as not”

84
Q

What are the “Caluza” elements?

A
  1. Current disability
  2. In service event
  3. Medical nexus
85
Q

Noting the caluza elements, Veterans are generally entitled if…

A
  1. Not result of willful misconduct
  2. Not DH discharge
  3. Disability incurred / aggravated by duty
86
Q

Regulatory bars to VA benefits?

A
  1. Willful misconduct
  2. Moral turp.
  3. Accp. discharge > avoid Crt Martial
  4. Spying or mutiny
  5. Homo acts
87
Q

Statutory bars to VA benefits?

A
  1. Hacksaw
  2. Deserter
  3. AWOL [180]
  4. Dismissal
  5. Alien
88
Q

Under Caluza, (1) Current disability must have competent evidence. What is that?

A
  1. Research from medical treaties
  2. Medical journals, etc.
89
Q

Under Sauners, the (1) current disability doesn’t have to be a specific diagnosis per se, but must….

A

The disability must result in [functional loss] of life or economic opportunity.

90
Q

(1) Current Disability must meet what standard? [Sauners v. Wilkie]

A

Must result in [functional loss] of life or economic opportunity.

91
Q

T/F) Pain itself can be a (1) current disability under Sauners v. WIlkie.

A

True, so long as results in [functional loss] of life or economic opportunity.

92
Q

What medical records will the VA seek out on their own?

A

Federal only. You must provide private medical records acquired outside of service.

93
Q

What case showed that Pain alone can qualify as (1) CD so long as functional loss of earning capacity affected?

A

Sauners v. Wilkie

94
Q

Gimp leg so you quit job at factory is example of what?

A

Functional loss. [Sauners v. WIlkie]

95
Q

For (2) In service event, at a minimum, you need lay or medical evidence to show what?

A

“At least as likely as not” there was in service occurrence or aggravation.

96
Q

Knee injury from accident before service. You are found [sound] at MEPS but knee later aggravated in service. Can you still get SC?

A

Yes. Aggravated by service. Must still argue all 3 caluza elements.
1. CD
2. In service event
3. Medical nexus

97
Q

Rebutting presumption of soundness, VA must show _____________ evidence that disability existed before injury and was not aggravated by service.

A

Clear & unmistakable evidence [very high bar for VA to clear]

98
Q

Regarding caluza elements, which one is the most common reason for denial?

A

(3) Medical nexus

99
Q

5 ways to establish medical nexus?

A
  1. Direct
  2. aggravated
  3. Presumption [agent orange]
  4. Secondary [PTSD > AA]
  5. VA healthcare injury
100
Q

For “aggravating” disability, Vet must show what and how does VA rebut?

A
  1. Vet = pre-existing condition permanently increased during active. [Meps exam is baseline for pre-existing]
  2. VA must show “natural progression” of disease with “Clear and unmistakable” evidence [very high bar]
101
Q

For presumptive service connections, is there a nexus requirement?

A

No. Just show you were deployed in that AOR. [DD214]

102
Q

T/F) For secondary service connection, it does not matter how much time has passed.

A

True

103
Q

Establishing (3) Medical nexus?

A
  1. Direct
  2. Aggravated
  3. Secondary
  4. Presumption
  5. VA HC injury

Charleston Law 2L (27 decks)

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