During the initial interview with a veteran, the veteran may have several new claims. The representative needs to timely recognize all of these possible new claims. All claims need to be addressed as soon as possible in order to establish the earliest effective date for each claim. Addressing each claim is important when considering VA math and possible Unemployability in the veteran’s future. Addressing every claim will give the veteran the best chance to maximize his benefits and be where he needs to be when he wants to address the issue of Unemployability when he is unable to continue employment because of his disabilities.
Under 38 C.F.R. _____, the veteran as well as the VA itself gets confused as to who is representing the veteran. The veteran may be represented well on issues on appeal; and be thrown under the bus with every other issue and have to represent himself, or receive the same kind of representation he had previously on other issues in the past. The veteran may be dealing with the same problems concerning the entirety of his claim that he had before he had an attorney representing him for issues on appeal.
When a veteran is denied a claim and the claim was not timely appealed; in order to be successful with the claim in the future, the veteran needs new and material evidence. The evidence needs to be new. It can’t just be the resubmission of the evidence already provided. The evidence must be material to the issue as well. Veterans are denied claims for various reasons such as pre-existing conditions, an injury being acute rather than chronic; or there’s just not enough evidence. Sometimes buddy statements and continuity statements by laymen can be new and material or a veterans’ testimony can be considered new and material. New and material evidence could be stressor statements for a psychiatric condition or a psychiatric opinion. When there’s a plausible basis the VA will provide medical or psychiatric opinions which are not always favorable; then the veteran has to obtain his own medical or psychiatric opinion. Treating physicians or treating psychiatrist’s opinions or independent medical or psychiatric opinions are the most productive way to provide new and material evidence after a claims file is reviewed by the physician. Veterans have a difficult time of obtaining these opinions on their own. Traditional representatives may not have the skills or funds to obtain the opinions.
Veterans need to file claims are continuous which result in multi-paths of adjudication with rating specialists, Decision Review Officers, and the Board of Veterans’ Appeals. A veteran’s body continues to breakdown, and new claims and secondary claims need to be filed. A veteran with diabetes is a good example. A diabetic eventually will have peripheral neuropathy in his extremities, problems with his vision, ED, renal insufficiency, and/or coronary artery disease. As these claims occur, new claims need to be filed. Therefore, when an attorney represents a veteran just for issues on appeal; the veteran ends up with multiple representatives or no representation at all for some of his potential issues.
Veterans’ organizations and state representatives normally do not receive funds for sending away for medical or psychiatric records that are non-VA records. Physicians normally charge in order to obtain a copy of the records. Physicians charge for the medical opinions as well. Moreover physicians do not like taking the time writing the opinions and sometimes need assistance in order to make their opinions fit into VA guidelines and regulations. Unless it’s a secondary issue, the relevant parts of the claims file needs to be put together for the physician; then the opinions sometimes need to be written for the physician. If he agrees, he will sign it. Training is not a substitute for writing skills. The review of traditional representatives writing skills are mixed even when traditional representatives assist a veteran with an appeal. For example, it is evident there may be questionable writing skills when reviewing appeals drafted by some traditional representatives. Since initial claims take from several months to 2-3 years; if a claimant cannot receive assistance from his representative to obtain a medical/psychological opinion, it would take several months to 2-3 years after a NOD is filed at the time an attorney is allowed to assist the veteran. Traditionally, veterans are forced to obtain their own non-VA medical records or the records are traditionally obtained by the VA itself. Moreover, the traditional representative may or may not have a copy of the non-VA medical records depending on the representative’s ability to obtain the contents of the claims file.
Representatives need to do thorough interviews and file all potential issues when there is a plausible basis for the issue when there’s a potential for the evidence to be received. Sometimes it turns out it’s not the issues that are filed that keeps the veterans from where he wants to be in his claim; it’s the issues that are missed. A good representative at times finds several issues that were missed when the veteran attempted to handle the claim himself, or was being represented by a representative that missed claims that shouldn’t have been missed in the past.
Veterans can receive benefits when claims have been denied in the past and not timely appealed when there was a clear and mistakable error or the claims are not completed at the time of the original adjudication. Clear and unmistakable error cases are technical and are based on case law history from the Court of Veterans’ Appeals decisions. A representative needs to know claims history, case law history, in addition to the Code of Federal Regulations concerning veterans’ law in order to assist with these kinds of claims.
Attorneys have already benefited veterans tremendously through the adjudication of case law at the CAVC. As a result, the VA has to provide more assistance to veterans, give reasons and bases for their decisions; and new rules have been established for earlier effective dates for decision. Although there are excellent claims representatives that do understand case law, the understanding and application of case law is mixed. Basic education and skills level does make a difference. Attorneys can make a difference whenever a veteran decides his representative is not providing the service he desires.