Posted On: April 6, 2011 by Jeffrey Michalowski

Appealing a VA Claim

I would like to thank James Kelley, a University of Missouri law student, for providing us with the following post.

After their service, veterans of the U.S. Armed Forces are entitled to a number of benefits. Common benefits include service-connected disability compensation, VA-provided health care, the VA Home Loan program, educational assistance, and Aid and Attendance Allowance. Some benefits, like VA home loans, come with a guarantee to lenders that give military homebuyers a chance to fully finance their homes. Outside of approving a Certificate of Eligibility and sending out a VA approved appraiser to determine the value of the home, the Dept. of Veterans Affairs has very little to do with this sort of benefit.

But in order to put other benefits to use, veterans must file specific claims with the VA. It is well known that the VA must determine the average loss in wages due to diseases and injuries that are related to service for veterans to receive disability compensation. As for health care, the VA offers health insurance, known as CHAMPVA, through the Veterans Health Administration. GI Bill benefits vary for each veteran, but they may include payment of tuition, stipends for books, and the Yellow Ribbon benefit.

Aid and Attendance Allowance (A&A) is another benefit that consists of general pay to veterans, spouses and parents. A&A allowance is included in all compensation, pension programs, and dependency and indemnity compensation (DIC). For veterans, the VA makes the decision on how much to award based partly on the veteran’s need for another person’s aid. The VA also considers the frequency by which the person provides that aid to the veteran. Receiving A&A may qualify a veteran for Special Monthly Compensation (SMC), which is paid in lieu of or added to combined degree compensation. Surviving spouses or parents may be entitled to A&A if they require aid from another person and were dependent on a deceased veteran.

Unfortunately, veterans and their families may struggle to realize A&A benefits because claims are often rejected. That does not mean the allowance is impossible to earn. The appeals process gives veterans a second chance to receive their rightful A&A benefits. Veterans should know that they have the right to appeal most VA decisions, including those pertaining to A&A. A vet must first appeal to the office that made the decision, and a decision review officer there may also deal with the case.
If the veteran is unhappy with the decision of the officer, and there are grounds for appeal, she or he may take the case to the Board of Veterans Appeals (BVA) after filing a timely Notice of Disagreement. Former judges and attorneys with experience in veteran’s law and benefit claims are typically BVA members. They alone have the authority to issue Board decisions. Staff attorneys help the Board members make decisions by going over the facts of each appeal. The BVA has jurisdiction only over cases that are still in dispute after a local VA office reviews them.
If the appeal to the BVA is also unsuccessful, the court of last resort for vets is the Court of Appeals for Veteran Claims (CAVC). Until 1988, there was no CAVC. It took decades of veterans and advocacy groups’ call for reform to the appeals process for the CAVC to take shape. The Veterans’ Judicial Review Act established the CAVC per Article I of the U.S. Constitution, therefore creating an independent body, outside the VA, to rule on decisions that would otherwise be made final by the BVA. While the BVA is part of the Department of Veterans Affairs, the CAVC is part of the U.S. judiciary. Since the VA is separate from the CAVC, the veteran is responsible for contacting the CAVC within 120 days of the adverse BVA verdict. This court exclusively deals with BVA decisions, and provides detailed judicial review of them. Thus, the CAVC theoretically offers an impartial review of BVA decisions designed to block veterans from claiming their A&A.

Filing a claim for any VA benefit—including A&A—is not easy. To maximize the benefits to which you’re entitled, it’s best to have an attorney whose expertise is in veterans law and appeals. It may seem like an unwanted initial cost, but having an attorney to guide you will ultimately pay off as you proceed to claim all of the VA benefits you have rightfully earned.

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