Military Veterans' Lawyer Blog

Filing a claim for disability benefits with the VA is a straight forward process. There is no magic formula to the process.

However, recent revelations about some employees at some VA Regional Offices destroying or hiding claims raises issues regarding how veterans can protect themselves from such unconscionable behavior. There are some things you can do to help make sure your claims are received and processed by the Department of Veterans Affairs.

The easiest way to protect against lost or destroyed claims is by delivering the claim to the VA Regional Office directly. Deliver the claim directly to the VA and ask the VA employee accepting the claim to date stamp the claim as received and provide you with a copy. The VA employee should be glad to accommodate your request. If the employee is not willing to abide by your request, ask to see a Supervisor. Now you have a copy of the claim you filed with a VA date stamp showing the date it was received by the VA. If you later discover the claim has been lost or has otherwise not be processed by VA, you can provide them with a copy of what you have and insist they open the claim and begin processing. Remember the date of the claim should be the date shown on the copy VA provided to you. This date is important because most benefits granted are granted effective the date the claim was filed with VA. There are exceptions to this but the date of the claim is a very important date and it should be correct.

Recent U.S. Court of Appeals for Veterans Claims (CAVC) cases have clarified how medical opinion evidence must be considered. These decisions did not have any impact on current Department of Veterans Affairs regulatory language, but they have made it clear how the CAVC will handle decisions made based on medical opinion evidence.

CAVC has held that the probative value (the weight to be given) of a medical opinion rests primarily in the examiner’s reasoning or rationale. CAVC held that private medical opinions cannot be discounted based on a lack of review of the veterans DVA claims file. CAVC further indicated that a DVA examination is not accorded greater probative value simply based on review of the claim folder.

However, CAVC did hold that DVA DOES NOT have a general duty to inform every claimant providing a private medical opinion of the availability of the DVA claim folder. In other words, DVA’s failure to inform the claimant that the claim folder is available for review by the private physician is not sufficient to reverse a denial based on lack of sufficient reasoning/rationale by the private physician.

Haas v. Nicholson was the case brought on behalf of “blue water” veterans who argued that the presumption of exposure to herbicides (Agent Orange) should be extended to veterans serving in the waters off the coast of Vietnam.

The presumption of exposure to Agent Orange has been defined by the Department of Veterans Affairs (DVA) as “served in the Republic of Vietnam.” This definition means a veteran must have performed duty or visited the country of Vietnam to be considered to have “served in the Republic of Vietnam.” This presumption of exposure, therefore, did not extend to those serving in the waters off the coast of Vietnam.

The argument made by the appellant, Jonathan L. Haas, was that the presumption should extend to those who served in the waters off the coast of Vietnam. The Board of Veterans Appeals (BVA) upheld the VA’s regulatory interpretation that presumption to exposure to Agent Orange did not extend to these “blue water” veterans.