Some recent cases of interest involve the setting of the effective date for increased ratings and the ongoing fall out from the rule that a veteran’s claim dies with the veteran.
In addition veterans need to know that the DAV has revised its campaign to prevent veterans from deciding for themselves whether they want to hire a lawyer to represent them.
Effective Date
As most people know the effective date for an award of benefits is determined by the date of the application for benefits unless the claim is received within one year of separation from service in which case the effective date is the date of discharge.
However, we are reminded by the recent case of Dalton v. Nicholson, No. 04-1196, decided February 16, 2007 that an exception to this general rule can occur when there is an award of increased compensation.
The general rule is stated as : “The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.” 38 U.S.C. 5110(b)(2);38 C.F.R. 3.400(o)(2); see also Harper v. Brown, 10 Vet.App. 125, 126 (1997).
Mr. Dalton’s appeal presented the question whether an award of unemployability (TDIU) is an award of increased compensation for purposes of assigning an effective date pursuant to the rule that “(t)he effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.” 38 U.S.C. 5110(b)(2).
As noted by the Veterans Court, the veteran, who was already rated 50% disabled for his service-connected PTSD, in seeking unemployability was “merely attempting to show that his condition was more incapacitating than the level at which it was then evaluated”.
According to the Court there can be no doubt that an award of TDIU to a veteran who was previously rated less than 100% disabled is an “increase” in compensation, and an already service-connected veteran who becomes unable to secure or follow a substantially gainful occupation as a result of that service-connected disability has logically undergone an increase in disability. This result follows because the veteran has gone from a state of being able to secure or follow a substantially gainful occupation, though not necessarily employed, to being unable to secure or follow a substantially gainful occupation.
However, the Court recognized that under some circumstances an award of TDIU may not amount to an award of increased compensation; for example, TDIU may be awarded as part of an initial award of disability compensation benefits. Therefore, the Court limited its decision to the facts presented: The grant of an application for TDIU based on an inability to secure or follow a substantially gainful occupation as a result of an already service-connected disability and the concession by the VA that the TDIU award was based in part on the worsening of the service-connected disability.
The Court concluded, that because under the facts presented by this appeal, the veteran’s award of TDIU was an award of increased compensation., the Board was required to consider and apply 38 U.S.C. 5110(b)(2).
Lesson learned: When requesting an increased rating or TDIU review the medical records and identify the earliest report of increased symptoms to use for an effective date up to a year before the date of the request.
Benefits on Death of the Veteran
The most surprising case decided recently is Pagett v. Nicholson ( now known as Pagett III), decided by the U.S. Court of Appeals for the Federal Circuit on January 5, 2007.
There, in a rare move for this Court, the Veterans Court had decided to reverse the VA’s decision and grant benefits for a right hip disability aggravated by a service-connected left knee disability, but because the veteran died the day after the Court’s decision the Court decided to recall its decision on the basis that the claim died with the veteran.
The veteran’s widow had requested that the decision stand because she could then benefit from the favorable decision in her soon to be filed claim for her husband’s accrued benefits.
Following an appeal, the Federal Circuit noted it had approved of the Veterans Court’s practice of dismissing a veteran’s claim for benefits as moot and vacating the underlying board decision, where the veteran died after filing a notice of appeal, but before his case was submitted for decision See Landicho v. Brown, 7 Vet. App. 42,52 (1994). However, the Federal Circuit noted that this is a different situation, because the appealed board decision is in a state of finality not found in the cases where the veteran died prior to the submission of his case
Accordingly, the Federal Circuit agreed with the widow and concluded that where a veteran dies after his case is submitted for decision, but before the opinion issues, the Veterans Court has authority to issue the judgment as of the time of the veteran’s and that under these circumstances, the surviving spouse, as an accrued-benefits claimant, may be substituted in her husband’s appeal.
A contrary decision on substitution, and ultimately on eligibility for benefits, occurred in the Federal Circuit case of Richardson v. Nicholson, 06-7060, decided January 30,2007.
There the veteran, after sustaining a massive heart attack, filed, on July 7, 2005 to compel the VA to pay his accrued benefits for the 100% evaluation for service connected PTSD which had been awarded in May but not paid.
A fiduciary was appointed for the veteran on July 15, 2005, but the State Court papers officially appointing her were not received until after the veteran died, on July 28th. Then the fiduciary asked to be substituted in the lawsuit seeking to compel the VA to make the past due payments.
After the Veterans Court refused to substitute and instead dismissed the lawsuit, the Federal Circuit agreed that the Fiduciary could not be substituted and the claim for benefits lapsed with the veterans death because the fiduciary who was not the veteran’s spouse child or dependent parent was ineligible to receive accrued benefits that are due and unpaid.
Lessons learned: If the veteran dies after the Court appeal is submitted for decision and if there is a recognized survivor the survivor will get the benefit of a decision in the veteran’s favor but if the veteran dies before the case is submitted or if at the time of the veteran dies there is no survivor then the VA “wins by death” and does not have to pay the veteran’s estate.
DAV’s continued opposition to veteran’s rights
Although S 3421 passed and was signed thus allowing veterans the right to chose, after June 22, 2007, whether they want to hire a lawyer for representation after the filing of the notice of disagreement (NOD), the DAV is still fighting the legislation.
DAV is supporting legislation to repeal the veterans’ rights established by S 3421 by falsely asserting that the VA system is truly benevolent and fair to veterans and will be made adversarial, burdensome and unfair if lawyers are involved.
Not only is the DAV’s view or the VA system wrong but it shows either that DAV is unaware of the difficulty veterans encounter in obtaining benefits or that DAV is aware of the difficulty and is deliberately misleading Congress. In either event DAV is ill serving veterans who deserve better.
To quote the DAV’s own words to Congress :
“We at DAV do not believe private attorneys will ease resolution of veterans’ claims, reduce the claims backlog, nor get these claims resolved on an expedient basis–the historical intent of Congress. We have been advised by professionals in VBA that your adding attorneys to the claims system will only complicate, lengthen and make more fractious the resolution of veterans’ disability claims. As an organization that furnishes 260 National Service Officers to aid veterans with their claims, we believe our own work at DAV will be compromised and made much more expensive once private lawyers enter in. How such an inevitably contentious new direction will actually help sick and disabled veterans receive their just compensation, pension and survivor benefits, we cannot foretell, but we know it will not be easy. We ask the Committee to take legislative action to repeal this measure at the earliest date possible.”
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“Veterans’ benefits are more than a matter of mere relief provided out of generosity by the government. Because veterans have made special sacrifices, have subjected themselves to extraordinary risks, and have borne unusual burdens for the benefit of the nation as a whole, they have earned special rights and special treatment. Veterans, who have served and fought for our country and our cherished freedoms, should never have to fight our government to get the benefits a grateful nation has provided as a reward for their sacrifices and service. It is intended that these benefits be provided with a minimum of difficulty for the veteran claiming them. Veterans are accorded a privileged status and are due more personal assistance from VA than claimants receive when seeking benefits from other federal forces. Again, it is important to remain mindful that veterans obtain their benefits through an informal, non-adversarial, and benevolent claims process, not a litigation process. The paramount distinction between the VA process and litigation reflects a calculated congressional intent and design to permit veterans to receive all the benefits they are rightfully due without any necessity to hire and pay a lawyer.”
Lessons learned and call to action: All veterans need to write to their representatives in Congress to explain that DAV did not accurately report the difficulties veterans encounter in obtaining the benefits from the VA which they have earned and demanding that veterans retain the right to decide for themselves whether they will be allowed to hire a lawyer after filing the NOD.