Veteran law Flashcards
Department of VA created when by who?
1988, Regan Admin.
Is private mortgage assistance required when using GI Bill?
Nope.
DVA creation in 1988 sep. the DVA into two categories. What are they?
- DVA [benefits]
- DHA [healthcare]
Veterans ________ review: Big deal because it provided for judicial review of DVA decisions. Previously this was not permitted. [How you appeal a BVA decision]
Veterans Judicial Review “VJR” = Court of Appeals for Veterans claims to hear appeals from BVA decisions.
_____ __ _____ Appeals: “BVA”: Anytime a claim is denied, it comes through here.
Board of Veterans Appeals
Who do you appeal to when appealing BVA decision?
VJR - Veterans Judicial review = COAs for Veterans claims
BVA: Benefit of doubt goes to who?
The Veteran
What system in 2017 ended the legacy system?
AMA [Appeals Modernization Act]
What Trump act cleaned up healthcare services and allowed Veteran to go (1) out of network and (2) Get ER help without prior authorization.
Mission Act 2017
____ Act of 2022 [Biden] is the largest expansion of ‘presumed’ medical conditions. [Burn pits]
Pact Act
_____ Act: For post 9/11 combat Vets, extends time period to enroll from 5 to 10 years.
Pact Act 2022 [Biden]
Pact Act 2022: T/F) If diagnosed with one of 23 specified conditions, there is no need to prove the service connection now.
True
T/F) US Code trumps FED regs
True
All FED law must flow through and comply with what act?
APA Admin Procedure Act
________________ 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.
APA: Admin Procedure Act
APA categorizes into two phases. What are they?
Formal & Informal
T/F) Individual agencies such as DVA have their own judicial bodies.
True!
Do Admin law judges, such as those with VA, have to be independent from agency itself?
Yup.
T/F) VA ALJs are prohibited by the APA from engaging in any ex parte contact.
True
4 Judicial deference standards of VA admin law?
- Chevron
- Looper [overturned chevron]
- Auer
- Skidmore
“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?
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.
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
Looper Bright. Overturned Chevron
What was the old standard of admin law judge review?
Chevron, where courts deferred to agency interpretation unless UR.
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.
Looper Bright
Chevron light = Courts defer to agency interpretation of ‘ambiguous’ decisions.
Auer deference
_____ 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.
Skidmore
When rule-making, what act must 3 letter federal agencies follow?
Admin Procedure Act
What “book” is the code of FED regs of finalized rules?
CFR
VA CFR is?
38 CFR
VA USC is?
38 USC
AMA reworked legacy. It created 3 lanes for Vets to appeal an RO decision. What are they?
- Higher level review “HOR”
- Supplemental claim “SUPP” - New and relevant evidence required
- Notice of disagreement “NOD” - Appealing to BVA
What is RO?
- Regional office
- Rating official
AMA: Appealing denied claim:
_________: This is equivalent to ‘de-novo.’ No new evidence is needed for review.
Higher level review “HOR”
AMA: Appealing denied claim:
____________: Must submit new and relevant evidence.
Supplemental “SUPP” claim
AMA: Appealing denied claim:
_______________ : You disagree with decision and appeal directly to BVA.
What if BVA denies as well?
NOD.
Then appeal to VA COAs.
_________ date is the date your benefits claim dates back to. It is established by the date you filed initial claim.
Effective date
T/F) Claim denied. You seek HOR. You may have informal conference with reviewer.
True! Great benefit to this lane.
4 criteria for “Veteran” status?
- Served armed forces
- On active
- Discharged
- Not dishonorable
What case demonstrated that “Insanity” is a blanket exception to bars of VA benefits.
Gardner v. Shinseki
When RO denies a claim, how much time must pass before the determination becomes “final?”
One year
T/F) General court martial discharge usually bars entitlement to VA benefits.
Exception?
True. “Insanity” can overcome.
Per the USCVA, when is a Veteran “insane”
When the mental illness caused the circumstances.
To get VA benefits for insanity, Veteran must have what?
Medical opinion that Veteran was “insane” as defined by VA regs, at time of incident.
T/F) VA has much narrower definition of insanity than the military.
False. Much broader.
T/F) Determination that individual was “sane” by military does not preclude the VA from later finding them insane.
True
T/F) NG must be activated federally to be eligible for VA benefits.
True - Allen v. Nicholson
If activated by State Governor for flood relief services that “activation” is not considered eligible for VA benefits. [T/F]
True
Can full time duty in Public Health Service and NOAA count as “Active” duty?
Yes
T/F) If ROTC called into summer training w/ a branch, this is active duty for training.
True, must be longer than 4 weeks.
If ambiguity between CFR and USC?
Take it to court since Chevron standard is gone.
What case showed that, if NG activated for state services, no benefits.
Allen v. Nicholson
6 classifications of separation from service?
- Honorable
- Under honorable [General]
- Other than honorable
- Bad conduct
- Dishonorable
- Administrative
OTH discharge also known as what?
Undesirable
Bad conduct discharge is achieved by what?
General & Special court martials
Equivalent of dishonorable for officers?
Dismissal
How is dishonorable achieved?
General court martial only
2 times when VA will find separation was dishonorable?
- Was DH
- Admin
Statutory bars to VA benefits?
- Conscious objector [Hacksaw]
- Desertion
- AWOL [at least 180 days]
- Officer accepting resignation
- Discharge as alien
What is a good reason to request HOR instead of SUPP claim when initial claim for benefits denied?
You can have informal review with RO
President Trump’s [45-47] ____ Act in 2017 permitted Veterans to do what?
Mission Act2017
2) 1) Go out of network
2) Go to ER without prior authorization
Can discharges other than honorable still get VA healthcare?
Yes but only for SC disabilities
T/F) Bad conduct discharge = no healthcare.
True, unless Insanity exception.
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.
Moral turpitude
Statutory bars are 38USC or 38CFR?
38USC “US Code” = Statutory
When does the VA typically conduct a character of service determination?
When discharge less than fully honorable.
What if the VA determines individual is barred from benefit after character of service determination? Anything else VA does?
Secretary shall provide such individual, info regarding ability of individual to address such condition.
T/F) VA only pulls DD214 and DD458 when determining character of service.
True so employ other helpful things. Buddy statements, MH records, etc.
What is DD458?
Court martial charge sheet
T/F) Period of service ending w/ disqualifying discharge normally precludes a person from eligibility for and VA benefit.
Exceptions?
True unless claimant served multiple periods of enlistment and not all were dishonorable.
Regulatory CFR bars to benefits?
- Accepting UOTH discharge to avoid General court martial.
- Mutiny
- Spying
- Moral turpitude
- Willful misconduct
- Homo acts
Statutory bars to benefits?
- Hacksaw
- AWOL [180]
- Deserter
- Dismissal
- Alien
6 yr enlistment.
First 3 = Honorable
Reenlist for 6 = 9 yrs total
First 3 = honorable
Last 3 = Bad conduct
Barred from benefits?
No. He has completed, in the aggregate, 6 total years of honorable service meeting the original enlistment number.
2 exceptions to the bar on VA benefits for unfavorable discharge?
- Insanity [need medical Opinion]
- MST
T/F) For MST, Veteran can get free care for all physical and mental conditions related to it, regardless of discharge.
True
DH discharge but it is related to MST. Barred from benefits?
Can still get healthcare for conditions related to MST.
Active duty requirement for Veterans serving before Sep 8, 1980?
1 day qualifies for all VA benefits. No real active requirement.
Active duty requirement for Veterans serving after Sep 7, 1980?
Active duty =24 months of continuous active duty. [2 years]
Reserves or NG = One full period for which activated, however long that may be.
____ ____ : Involves [deliberate] or [intentional] wrongdoing with [wanton] reckless disregard of [probable consequences.] = Regulatory bar to benefits
Willful misconduct
2 general examples of “willful” misconduct?
- Alcohol abuse
- Drug abuse
- Primary alcohol abuse SC?
- Secondary alcohol abuse SC?
Only 2. Develops 2 to PTSD for example. Connection can be granted for this.
3 requirements for “establishing” SC? “Caluza elements”
- Current disability
- In service event
- Medical nexus
- Current disability must include _________ evidence.
Competent
- In service event: Must include _______ opinion or ______ evidence documenting in service event. Must be “ _______________” that it occurred.
- Medical opinion
- Lay opinion [buddy statement]
“At least as likely as not”
What are the “Caluza” elements?
- Current disability
- In service event
- Medical nexus
Noting the caluza elements, Veterans are generally entitled if…
- Not result of willful misconduct
- Not DH discharge
- Disability incurred / aggravated by duty
Regulatory bars to VA benefits?
- Willful misconduct
- Moral turp.
- Accp. discharge > avoid Crt Martial
- Spying or mutiny
- Homo acts
Statutory bars to VA benefits?
- Hacksaw
- Deserter
- AWOL [180]
- Dismissal
- Alien
Under Caluza, (1) Current disability must have competent evidence. What is that?
- Research from medical treaties
- Medical journals, etc.
Under Sauners, the (1) current disability doesn’t have to be a specific diagnosis per se, but must….
The disability must result in [functional loss] of life or economic opportunity.
(1) Current Disability must meet what standard? [Sauners v. Wilkie]
Must result in [functional loss] of life or economic opportunity.
T/F) Pain itself can be a (1) current disability under Sauners v. WIlkie.
True, so long as results in [functional loss] of life or economic opportunity.
What medical records will the VA seek out on their own?
Federal only. You must provide private medical records acquired outside of service.
What case showed that Pain alone can qualify as (1) CD so long as functional loss of earning capacity affected?
Sauners v. Wilkie
Gimp leg so you quit job at factory is example of what?
Functional loss. [Sauners v. WIlkie]
For (2) In service event, at a minimum, you need lay or medical evidence to show what?
“At least as likely as not” there was in service occurrence or aggravation.
Knee injury from accident before service. You are found [sound] at MEPS but knee later aggravated in service. Can you still get SC?
Yes. Aggravated by service. Must still argue all 3 caluza elements.
1. CD
2. In service event
3. Medical nexus
Rebutting presumption of soundness, VA must show _____________ evidence that disability existed before injury and was not aggravated by service.
Clear & unmistakable evidence [very high bar for VA to clear]
Regarding caluza elements, which one is the most common reason for denial?
(3) Medical nexus
5 ways to establish medical nexus?
- Direct
- aggravated
- Presumption [agent orange]
- Secondary [PTSD > AA]
- VA healthcare injury
For “aggravating” disability, Vet must show what and how does VA rebut?
- Vet = pre-existing condition permanently increased during active. [Meps exam is baseline for pre-existing]
- VA must show “natural progression” of disease with “Clear and unmistakable” evidence [very high bar]
For presumptive service connections, is there a nexus requirement?
No. Just show you were deployed in that AOR. [DD214]
T/F) For secondary service connection, it does not matter how much time has passed.
True
Establishing (3) Medical nexus?
- Direct
- Aggravated
- Secondary
- Presumption
- VA HC injury
“Special rules” for combat Vets applies to which element of establishing SC?
- “In service event”
T/F) Vets receive favorable treatment for proving “incurred events” because military record keeping may be deficient under combat conditions.
True, so long as it is “consistent with conditions” or hardships of such service. 1154(b)
Which US Code [38USC___] allows statements from Veteran to prove second element “In service event” with great lenity for the Veteran.
38USC1154(b)
1154(b) allows for great lenity why? What does this mean for your client?
- Because military record keeping may be deficient in combat conditions.
- Veteran statement alone may prove element 2 of SC “in service event” under 1154(b).
Does 1154(b) remove the need for CVs to prove the other 2 requirements for establishing SC?
No.
- CV files for SC for injured shoulder in combat, Iraq, 2002.
- Submits statement to satisfy “In service event” under 1154(b).
Q. Need anything else?
- CD = Medical opinion [competent evidence]
- Medical nexus between the elements.
Prerequisite for 1154(b) to apply to element 2 of SC?
Incident occurred while Vet was “engaged in combat with enemy.”
How to corroborate CV’s statement for establishing SC element 2? [In-Service event]
- DD214 showing AOR
- Medal of honor, purple heart, Ribbons with “V” attachment
- Hazard pay
- Buddy statements
T/F) The VA may conclude that Veteran did not engage in combat simply b/c of their rating / MOS or that Veteran did not receive combat ribbon.
False. [Cooks]
What is MOS?
Military Occupational Specialty
VA defines “engaged in combat with enemy” how?
Actual fight with:
1. Military foe;
2. Hostile unit; or
3. Instrumentality
T/F) If claimant has eligibility for benefits based on period of service that ended w/ qualifying discharge, those benefits are not lost b/c of bad discharge ending subsequent period of service.
True. You can have multiple periods of service and some of them may have been honoroable.
T/F) For MST, you get free care for all physical and mental conditions related to it.
True, even so far as to override DH discharge.
DH discharge but MST = Can get HC for MST related conditions. T/F
True
Can the VA conclude the Veteran did not engage in combat simply b/c of their MOS?
No.
How does the VA define engaged in combat with the enemy?
Actual fight with military foe, unit, or instrumentality.
Final component of Veteran’s statement for (2) “ISE” per 1154(b) must satisfy three conditions:
1.
2.
3.
- Satisfactory and credible “S&C”
- Consistent with conditions, circumstances, hardships of service.
- NO “C&C” evidence that event did not occur.
What are the final 3 components of 1154 combat veteran statement?
- “S&C” Satisfactory ad credible
- Consistent with conditions, circumstances, and hardships of service.
- No “C&C” evidence that it did not occur.
While CVs must still satisfy all 3 elements for SC of PTSD, there is a lower evidentiary threshold to establishing occurrence of stressor, per 1154(b). [T/F]
True Pentecoast v. Principi, 16 Vet. App. 124 (2002)
Which case showed that “Veteran’s lay testimony alone may establish occurrence of claimed stressor.” [For PTSD claims?]
Pentecost v. Principi
After an event, person may feel emotional “numb.” If the symptoms ___ and Veteran cannot be ____ , then PTSD may be valid claim.
- symptoms persist; and
- Veteran cannot assimilate
Satisfying 3 SC elements [PTSD]
* Must be Current Disability
* T/F) SC is still available even when PTSD is not diagnosed within the first years after service.
True.
T/F) With regard to element (1) of SC requirements, once a diagnosis is made, it is very difficult for the VA to dispute that diagnosis.
True
Element (2) for PTSD, does the stressor that leads to PTSD have to have taken place in “Combat?”
No.
T/F) PTSD may also develop from “actual or threatened death or serious injury.”
True
Service in combat zone, does not by itself qualify Veteran for SC for VA benefit purposes, BUT, if that service resulted in feeling of _____ ____ or ______, especially for prolonged period, may constitute a stressor.
- Intense fear
- Feelings of hopelessness
For prolonged period = PTSD
What if Veteran claims to have been in combat, but service records do not support the claim?
VA duty to assist applies, they must contact Joint Services Records Research Center “JSRRC.” JSRRC will search for records supporting.
In VA service records do not support PTSD claim, who MUST the VA contact?
JSRRC - Joint Services Records, Research Center
T/F) It is improper for the VA to deny a PTSD claim with a valid diagnosis because of an unconfirmed stressor until the case has been reviewed by JSRRC.
True
[SC 2nd req. for PTSD]
Stressor related to Fear of hostile military activity is its own PTSD subcategory. [T/F]
True. VA amended this category in 2010 to make it easier for Veterans to satisfy this stressor.
[SC 2nd req. for PTSD]
For “fear” related stressor, what is a notable exception to satisfying 2nd element of S.C. requirements?
Where VA psych has diagnosed PTSD in this category, requirement for corroborating evidence is eliminated.
For the “Fear” PTSD subcategory, Veteran need not have been in designated combat zone. [T/F]
True, but only for claims after July 13, 2010. [Fort Hood]
For “Fear” related PTSD where Veteran has been diagnosed by VA psych with PTSD, no corroborating evidence needed if filed after what date?
July 13, 2010 [After Fort Hood]
VA has recognized that PTSD can occur / develop how long after stressor?
Years.
38 CFR Part __ establishes disability ratings for various body systems.
Part IV
Ratings are in ___ % increments only. IE: No such thing as 95% disabled
10%
T/F) Each disability 10% increment has its own level of VHA healthcare benefits.
True. These are called “priority” groups and there are 8.
How many VHA healthcare priority groups?
8 baby
T/F) Regardless of rating, all Veterans can receive up to 90 days MH benefits.
True
Priority group 1
- 50% or more; or
- SC disability that makes you unable to work “TDIU”; or
- You received the MOH
Priority group 2
30-40%
Priority group 3
- 10-20%; or
- POW or purple heart; or
- Disability discharge [H-kamp]
- Voc Rehab “malpractice” disabling
Priority group 4
Catastrophically disabled or receiving VA aid / housebound benefits.
Priority group 5
- 0% or no SC disability
- VA pension or medicaid
Priority group 6
0% SC disability or at Hiroshima, Nagasaki, WWII, Vietnam, Persian Gulf war, Camp Lejeune [for at least 30 days]
Which priority group lumps in 0% SC and ALL past war Veterans + Camp Lejeune [30 days.]
PR Group 6
PR group 7
Broke ass
PR group 8
Not broke but don’t qualify for shit else
Who is exempt from copays regardless of PR group?
- Care related to SC disability
- Agent Orange registry exam
- MST counseling and care
- C&P exams
- Readjustment counseling [you could get this]
- Smoking cessation & weight reduction services
- Hospice care
Which rating % gets dental, vision, and hearing?
100% P&T
T/F) For 100% P&T, Veteran may get free healthcare anywhere on the VAs bill. IE: Non-VA facilities.
True
VA will always use what CFR for establishing rating schedule?
VA 38 CFR Chapter, I Part IV, subpart B.
Part ____ of 38 CFR, Chapter I, breaks down rating systems by body parts and within each body system can be multiple conditions.
Part 4, subpart B.
VA Math
1) 40%
2) 30%
What’s his rating?
60%
VA Math
1) 60%
2) 30%
3) 10%
What’s her rating?
70%
All initial claims must be filed using what form?
21-526EZ [526]
All initial claims filed using what form? [Hint: Highway you drive everyday]
21 526EZ “526”
T/F) Any claim that has passed 1 year without Veteran’s disagreement will be considered final and closed.
True
What form to disagree / reopen a claim? [Supplemental / NOD]
20-0995 “Highway 95”
What highway can you use to remember the form for supplemental claims?
Highway 95
Intent to file gives you extra time. What form?
21-0966 “Highway 66”
Forms
1. Initial claim
2. Supplemental claim/NOD
3. Intent to file
- 526
- 95
- 66
What does 66 form do?
[Intent to file] Preserves date form was filed as the “effective date” as long as Veteran files within 1 year of this.
Form 66 preserves the “effective” date so long as what?
Veteran files within one year.
This form is a powerful tool that allows Veterans to put together their claims properly without pressure of rushing just to establish an effective date.
66 form [Intent to file]
How long does Veteran have to file NOD?
1 year
For initial claims, “effective date” is what?
The date the VA received the claim or date entitlement arose, whichever is later.
What case for “date entitlement arose” ?
Delisio v. Shinseki
______ case for “date entitlement arose.”
Shinseki
“Date entitlement arose” focuses on:
1.
2.
- Date disability manifested
- Date disability benefits approved by law
[whichever is later]
- 526 filed where?
- Where go?
- Access VA.gov or eBenefits portal
- Nearest RO
Claim folder established after 526 filed and goes to RO based on what?
Vet permaent address
When RO receives 526, claims processor does what?
Initial screening to determine basic eligibility and determine if application is “substantially complete.”
T/F) If the initial claim processor determines that a claimant does not meet one or more eligibility factors 4 benefit, the claim may be denied without verifying service.
True
Claims processor determines if the 526 initial claim is ____ ____ or not.
Substantially complete. If not, notify Vet / rep. what is needed to complete.
What’s the most missed line item on 526 application resulting in “Not substantially complete” finding my claims processor.
Missing signature
If application passes “substantially complete” test, it goes where?
VBMS system. [Veterans Benefit Management System]
VBMS =
Veterans Benefit Management System. Claims go here when deemed “substantially complete.”
When claim delievered to VBMS, RO does what?
RO loads adjudication of each claim into VBMS and sends notification to Vet. Vet can then agree or disagree with that decision.
T/F) Missing C&P exam may not result in automatic denial.
False. It will!
T/F) The C&P examiner is required to write down their initial impression of you.
True
DBQs are used by the C&P examiner. What are those?
Disability Benefit Questionnaire
T/F) “Inside secret”: Every person with computer can get access to DBQs used by C&P examiner and review them!
True!
DBQs are the _____ at your fingertips before the C&P exam.
answers [cheat sheets]
