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On August 27, 2007, the VA created a new procedure for regional offices to follow in cases involving awards with an effective date retroactive eight years or more or which result in a lump sum payment of $250,000 or more.

http://www.vawatchdog.org/07/nf07/nfOCT07/OCTFILES/ExtraordinaryAwardsFastLetter.pdf

The new procedure requires the following :
1) the claims folder gets “flashed” to send an alert;
2) the claims folder gets forwarded to the Post – Determination Team;
3) the rating must not be offered to any veteran’s representative for review;
4) the Post – Determination Team must prepare a referral memorandum for the Veterans Service Center Manager “VSCM” to request administrative review of the rating by the VA Compensation and Pension Service “C&P”;
5) the VSCM must then review the decision and if the VSCM agrees with the rating must sign the referral memorandum, requesting administrative review;
6) the claims folder and the referral memorandum are then sent by Federal Express to C&P in Washington DC; and
7) if C&P agrees with the decision, the decision will be subject to review by the veterans representative and will be promulgated;but
8) if C&P disagrees with the decision, “it will provide specific corrective action”.

It must be noted that this new procedure is in addition to the three signature requirement for awards exceeding $25,000 which is contained in M21-1, Part V, 9.01(b)

Obviously this new procedure will have the effect of further delaying the granting of long overdue awards which were denied to veterans and other claimants because of errors committed by the VA years ago.

Equally obvious is the fact that this procedure will have a chilling effect on the granting of ratings which recognize that an injustice occurred many years ago. This chilling effect was seen some years ago when the VA decided to review the grant of benefits for unemployability.

What you can do.

You can write to your representatives in Congress.

You can also contact:

the National Organization of Veterans Advocates http://www.vetadvocates.com/

or VA Watchdog http://vawatchdog.org/

if you have information that your award of benefits was taken away as the result of review by the C&P Service.

There were two recent cases where veterans attempted to use presumptions to prove connection between injuries and present disability.

In the first case the veteran who had made complaints of pain in his back, ankles, knees and feet appealed the denial of his claim for service-connected benefits attempted to use the language in 38 U.S.C. § 105(a) to prove that his present disabilities were service-connected by relying on the language that says that an injury occurred during active service will be deemed to have been incurred in the line of duty unless such injury was the result of willful misconduct. The Federal Circuit in Dye v. Mansfield, 2007-7093, decided October 16, 2007, concluded that the presumption was irrelevant to prove of causal relationship between a present disability and an injury in service, relying on its earlier decision in Shedden v. Principi, 381F.3d 1163,1166-67 (Fed. Cir. 2004)

A different result occurred in the Veterans Court where a veteran sought to rely upon a grant of 10% disability rating and separation from service and the language 38 C.F.R. § 3.1(m) to show that his injury to a pre existing foot disorder aggravated the pre existing condition. In Stover v. Mansfield, 02-1604 decided November 6,2007, the Court relied on the statute dealing with severance pay and the regulation contained in 38 C.F.R. § 3.1(m) to hold that the Board must discuss the service department’s report and the necessary findings made by the service department to support an award of severance pay as evidence potentially favorable to the appellant on the question of whether the appellant’s condition was aggravated in service.

What we learned from these cases is that although a line of duty determination is irrelevant to the question of whether a present disability is related to an occurrence in service, the grant of severance pay, which involves a necessary determination of line of duty, must be considered by the VA in determining whether a pre-existing condition was aggravated in-service and thus should be compensated as a service-connected disability.

In a recent case the Veterans Court, following the instructions of the Federal Circuit, applied the “mail box rule” to determine that a Court appeal which was received late was actually on time. . Under the common law mailbox rule, “if a letter properly directed is proved to have been either put into the post office or delivered to the postman, it is presumed, from the known course of business in the post office department, that it reached its destination at the regular time, and was received by the person to whom it was addressed.”

In Rios v Mansfield , 04-0354 , decided November 6, 2007, the court determined from the affidavits, and other information submitted, that the veteran’s November 6, 2003 appeal to the court was properly put in the post office in Puerto Rico on November 6, 2003and that because normally takes three days to get from Puerto Rico to Washington DC the appeal was timely filed on November 9 well before the cutoff date of February 13,2004, even though the appeal was never logged in at the court.