January 3

VA’s New RAMP (Rapid Appeals Modernization Program)

By now many veterans have received a mailing that there is an effort to decrease the waiting time in your VA appeal. The program is a pilot program where veterans can “opt in” to the new RAMP program, while others may chose to stay in the older so called “legacy” program. This article is intended to be informative, but by no means authoritative as the program is new, and we are picking up a lot of information along the way. While overall we don’t really recommend the program, there could be some advantages such that favorable findings are binding in future adjudications. Also the ability to return to the agency within one year of denial is preserved with “new and relevant” evidence while the original effective date is kept. The earliest effective date is February 2019. If a veteran is invited to participate they must withdraw all appeals/hearing requests to participate, and it won’t be clear usually which appeals are eligible since many veterans have multiple appeal issues. The other disadvantage is that once a veteran opts in they can’t revert back to the prior legacy system.

If a veteran wishes to reject the opt in they need not do anything otherwise it appears one can opt in even after 60 days following the election letter. Upon receiving a decision from the RAMP system a veteran cannot appeal to the Board until the pilot program is over in February 2019. As a part of the opt in a veteran can go for higher level review (HLR) where no new evidence will be accepted after the opt form is submitted. The veteran can request an informal conference that will be telephonic. If the veteran is unsatisfied with the HLR then they can either file a supplemental claim with new and relevant evidence or file an appeal to BVA. On the supplemental claim if a veteran wants to appeal that then they can file a HLR, file another supplemental claim with new and relevant evidence, or file appeal with BVA.

The bottom line on this program is that we are not recommending participation at this point in time. This is primarily because we aren’t sure what the pros and cons of this unproven system are, and even though it promises faster decisions these decisions won’t necessarily be more favorable to the veteran. Furthermore, you cannot return to the legacy system once opting in and can’t appeal to the Board until at least 2019.

December 7

Win your VA case with “Lay Evidence”!

What is Lay Evidence?
Lay evidence is any evidence written from a non-expert or non-medical professional that offers observational or a layperson’s perspective on any necessary fact that can substantiate a claim for VA compensation. More simply stated, any written or oral statement that describes one’s symptoms or what a veteran experienced during service that may have caused a disability to be service connected.

Why do I need lay evidence to support my case?
Lay evidence is extremely powerful evidence because the VA is prohibited from disregarding it. So long as the evidence relates to factual issues that can be observed either by a third party or the veteran themselves–the evidence must be considered and factored into the ultimate decision. The only problems veterans sometimes have is that they use this opportunity to try to give an opinion on whether a condition is service connected by giving an opinion that only a medical or some other kind of expert can give. An example of this type of opinion would be that if the veteran said, “I believe that my service connected shoulder problem caused the problem in my wrist.”. This would be dismissed by the VA since it gives an opinion that only a professional medical expert could give, and not a layperson. However, if the veteran’s letter or affidavit indicates for example: “Since my service in the military I have experienced a sharp pain from my wrist to my shoulder approximately once every three days. The pain is of the shooting variety that flares up to occasionally severe pain. When I have it I can barely use my arm, but it depends on the day”. The more detail that is given the better.

The example above is extremely useful because it doesn’t give any particular opinion, but only gives the VA an idea as to the facts of a particular condition. Its also credible and believable since it does not tend to exaggerate or embellish the problem. The facts give an idea that the problem is not an every day problem, but is occasionally severe depending on the day.

In what format should my lay statement be in?
There is an official VA form to provide such a statement. If you are so inclined you can use the VA form. However, writing your letter on a separate piece of paper is just as effective. The important thing is the content should be factual and not opinion oriented as described above. It should also be dated, include your name or the Veteran’s name and C file number, and be signed by the person making the statement. Some people put the statements in a more formal affidavit format that could could be subscribed and signed by an official notary with indication that the statement is given “under the penalty of perjury”. This is certainly not required, but could enhance the validity of the statement.

Who should write a lay statement?
The veteran and any other person who was able to observe the veteran’s condition. This could be a buddy from the military who observed the veteran’s disability or a family member. Any person that can provide a factual basis as to when a disability stated or how severe a disability is.

December 6

How long will my VA compensation claim take?

Veterans who file a claim for service connected compensation may experience long wait times before they receive those benefits.

What Should I do first?

Before you file a claim, you should make sure to obtain copies of your medical and service records. The VA may process the claim faster if you have all of your records when you apply for benefits. Moreover, the veteran may expedite their claim at the Regional Office level if they have a terminal illness, extreme financial hardship, or are a former prisoner of war.
Veterans should submit a Notice of Disagreement when they are denied benefits.

How long does it take to get a Statement of the Case or Board Decision?

It can take around 419 days to receive a statement of the case “decision” after filing your first appeal or “Notice of disagreement”. This is an average and depending on which office processes this time could be more or less. Similarly, the Board of Veterans Appeals (“Board”) takes a long time to issue a decision too. However, the Veteran can expedite the claim if they are over the age of 75, has a serious illness, or has severe financial hardship. Requesting a hearing generally slows down the Board’s decision. Veterans should request a video hearing if they are concerned about time, as an in-person hearing takes longer. Alternatively you can request a hearing at the NOD level or create a “lay statement” whereby you attest to anything you would say in a hearing in an affidavit or letter format. The Board travels around the country for in-person hearings, and it might take years for them to visit your area. Unfortunately, the Board may take years to decide the case. Veterans should understand that they might be waiting over three or four years to hear back from the Board.

CAVC

Veterans can appeal their BVA decision to the Court of Veterans Appeals (“CAVC”). The CAVC issues a decision much faster than the Board, however we don’t recommend handling a CAVC an appeal without a qualified attorney.
The VA will expedite a veteran’s case if the CAVC remands it back to the Board. Gather evidence to help your case if you know it will be remanded. Veterans should follow up with the Regional Office every 30-45 days after their case is remanded to make sure the Regional Office is moving the case forward. Your attorney can file a special document, called a writ of mandamus, which educates the Board or Regional Office on the rules requiring expeditious treatment. Unfortunately, it sometimes takes years to receive VA benefits. When going through this process, please know that you may be waiting several years to finally get a decision. We provide useful advice on this site to give you the best chance of winning by presenting the best evidence and legal support to win your claim(s).

July 27

How to get your Medical Records for low cost.

Its understandable that many people become frustrated when they try to get their own medical records from doctors or hospitals, but the providers charge exorbitant fees. This is despite the fact that most of these records are kept and stored electronically, and so should be very easy to transfer to the patient. A potential solution is to request records electronically pursuant to the HITECH Act also known as the Health Information Technology for Economic and Clinical Health Act. Many people know that medical records are protected as private as part of the HIPAA Health Insurance Portability and Accountability Act of 1996. The HITECH Act is merely a part of this law, but provides for a much cheaper way to receive one’s medical records electronically. It should not be too surprising that many medical providers are aggressively pursuing their perceived right to substantial fees for providing these medical records. This includes third party contractors that hospitals and doctors use to handle their records handling. Many insist that the records are only kept in paper format and they don’t have the means to provide them electronically. Under the rule, the fees that can be charged can be no greater then the labor costs in of formatting the records electronically.

Running into Problems?

When you run into resistance from the various medical providers when they refuse to provide the records at a low cost there are remedies that do not include a specific cause of action against those providers. Instead the state attorney general can enforce this particular law as can the Health and Human Services Agency. In order to file a complaint for non compliance you can look to the federal regulations at 45 C.F.R. § 160.404(b). We can also provide one upon inquiry by emailing us or contacting us. Just remember that the law is complex and is a creature of congressional compromise so they may not provide low cost records in all cases and results may vary. Important guidance on the rule can be found here.

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