Veterans’ Advocate Insider – April & May 2016 Edition



President’s Message: VA Appeals Reform Moves Forward with NOVA Input

NOVA recently announced the promotion of Diane Boyd Rauber to Executive Director.  Diane will continue to address NOVA’s legislative, regulatory, and outreach efforts while developing member services and overseeing NOVA’s educational training.  David Hobson has agreed to remain with NOVA in a senior advisory role and will be a valuable asset during our transition.

David’s leadership has helped guide NOVA’s growth to where we are today.  The Board appreciates and thanks him for his dedication, professionalism, and guidance in moving NOVA forward.  In July, the Board of Directors will participate in a two-day planning session in DC to continue discussions for identifying short- and long-term goals and developing revenue ideas for NOVA.

VA is moving appeals reform forward at a fast pace.  As we shared in a previous newsletter, VA convened a three-day summit in March to discuss the creation of a framework for appeals reform.  In addition to VBA and BVA officials, NOVA participated with numerous VSOs and NVLSP.  Discussions of appeals reform proposals are ongoing and another meeting is scheduled to discuss treatment of the inventory of appeals already in the system.  VA drafted legislation that was forwarded to Congress.  The House Subcommittee on Disability Assistance and Memorial Affairs invited NOVA to testify at a hearing on the VA’s proposal, but the hearing was canceled.  Rep. Dina Titus (D-NV) introduced a bill reflecting the VA’s proposal, H.R. 5083.

Secretary McDonald spoke at the CAVC Bar Association program following the Judicial Conference and asked for stakeholder support of the VA’s proposed reform.  The VA’s goal is for legislation to pass by Memorial Day.  NOVA continues to actively advocate for reforms that protect veterans’ due process rights and recognize the veteran’s right to his or her choice of representative.

In addition to following legislative matters of interest, NOVA continues to press VA on issues relating to electronic access.  Please subscribe to the Outreach, Regulatory, and Legislative Information Forum for the most up-to-date information.

The Seminar Committee is putting the finishing touches on the agenda for the Fall Conference scheduled for September 22-24 in Providence, RI.  Registration will open in June.  We hope to see you there!

Best regards,

Glenda S. Herl

NOVA Names Diane Boyd Rauber as Executive Director, Effective May 1

Washington, D.C. – The National Organization of Veterans’ Advocates, Inc. (NOVA) announced today that its Board of Directors has promoted Diane Boyd Rauber to executive director, effective May 1, 2016.  She replaces David Hobson, who came out of retirement in May 2012 to assist with NOVA’s consolidation efforts in the Washington, D.C. area.  During this time, NOVA’s membership reached record levels, as did attendance at its semi-annual training conferences – widely regarded as the ‘gold standard’ in veterans’ law education.

Diane has served as NOVA’s Director of Legislative and Regulatory Affairs since September 2015.  Her appointment to the top spot, recommended by Mr. Hobson in a March letter to NOVA leadership, is yet another step toward NOVA’s long-range vision to enhance its mission by further educating Congress, the Department of Veterans Affairs (VA), and the public about fair and just treatment of our nation’s disabled veterans.

“Diane is the right person at the right time to accomplish our expanded mission, having earned the respect and trust of the Board of Directors and its membership,” stated NOVA President Glenda Herl.  “During her short interval with NOVA, it became apparent that Diane’s knowledge and professionalism are perfect attributes for the top staff leadership spot, enhancing NOVA’s efforts going forward.”

President Herl went on to say, “This is a natural evolution for NOVA that was set in motion the day David Hobson took control of the helm.  His leadership has guided NOVA’s growth to where we are today – NOVA is now ready to tackle some of the most difficult challenges faced by advocates representing disabled veterans and their families.”

Additionally, “David has agreed to remain with NOVA in a senior advisory role, at Diane’s request.  David will be a valuable asset during this transition, as he has been throughout his tenure and in securing his successor, in accordance with NOVA’s long-term plan.”

In closing her commentary, President Herl noted: “I hope all of you will join me in welcoming Diane to this key spot in NOVA’s leadership and in thanking David for his dedicated service and for completing the mission he set out to accomplish four years ago.”

In Diane’s position as NOVA’s Director of Legislative and Regulatory Affairs over the past seven months, she has focused on reaching out to members of Congress, VA, and veterans’ service organizations (VSOs) to raise awareness of NOVA’s mission and goals.  Her efforts have yielded an ongoing dialogue with VA officials about much needed reform in its appeals process for veterans’ claims and how best to accomplish meaningful change without infringing on veterans’ rights.

Diane has extensive knowledge of the hurdles set before disabled veterans who choose to appeal the VA’s decision to deny their earned benefits.  In January 2015, Diane testified before the House Subcommittee on Disability Assistance and Memorial Affairs regarding the veteran’s dilemma navigating the VA’s complex appeals process.  Diane will continue to provide testimony on behalf of NOVA enabling Congress to better understand the complex issues and procedural roadblocks facing veterans who are seeking their earned benefits.

Prior to joining NOVA, Diane served as Associate General Counsel and Director of Appeals at the Paralyzed Veterans of America (PVA), Office of General Counsel, in Washington, D.C.  At PVA, she oversaw the transition of the National Appeals Office to attorney leadership.  She also represented hundreds of PVA clients before the Board of Veterans’ Appeals, served as PVA’s liaison in Board/VSO meetings and working groups, and collaborated with PVA’s Government Relations staff on appeals reform issues.

Prior to PVA, Diane’s career includes serving as of counsel to the Law Office of Wildhaber and Associates, and as a staff attorney at the National Veterans Legal Services Project, representing veterans before the Board and the United States Court of Appeals for Veterans Claims (CAVC).  She also served as a consultant to the American Bar Association’s Center on Children and the Law, contributing to numerous publications on child welfare law and practice.

Diane is a member of the United States Court of Appeals for Veterans Claims, the Court of Appeals of Maryland, the Court of Appeals of the District of Columbia, the United States District Court for the District of Columbia, and the Supreme Court of the United States.  In addition to NOVA, she is also a member of the CAVC Bar Association and the Maryland Bar Association Veterans Affairs and Military Law Section.

Ms. Boyd Rauber earned her law degree from Catholic University of America School of Law, Washington, D.C.  Additionally, Diane has a Master of Education degree in Special Education from the University of Pittsburgh, and a Bachelor of Science degree in Communication Disorders from Pennsylvania State University.

Robert Chisholm Receives Hart T. Mankin Award at CAVC Judicial Conference

At its recent Thirteenth Judicial Conference, the United States Court of Appeals for Veterans Claims (CAVC) honored NOVA leader and Court practitioner Robert V. Chisholm with the Hart T. Mankin Award.  The Court bestows this award from time to time on a person or group of persons outside the Court whose service to the Court has been outstanding.  The Hart T. Mankin Award has had only nine prior recipients since its inception in 1994; NOVA received the award in 2000.

The CAVC recognized Robert for his 25 years of outstanding service to the Court; his unlimited willingness to participate in Court conferences and present on a variety of veterans law panels; his energetic service as a founding member, second President, and avid long-term supporter of the CAVC Bar Association; and his continuous support and mentorship of others in the field through veterans law outreach and education efforts and the work of his law firm.

A mainstay presenter at NOVA conferences, Robert is a partner at Chisholm Chisholm & Kirkpatrick, which specializes in veterans’ law.  He served as NOVA’s president from 1999 to 2005.  His work on behalf of NOVA resulted in the amendment of 38 U.S.C. § 5904, which permits veterans to hire an attorney after the notice of disagreement is filed.  He was the first recipient of NOVA’s Kenneth Carpenter Achievement Award for Excellence.

Robert graduated magna cum laude from Boston College and the Boston University School of Law, where he was a member of the Law Review.  He is admitted to practice in numerous courts and jurisdictions, including the Court of Appeals for the Federal Circuit and the United States Supreme Court.

Please join NOVA in congratulating Robert on this well-deserved award!

Senate Vets Omnibus Bill Focuses on VA Accountability, Whistleblower Protection

In a press conference on April 28, 2016, the Senate Committee on Veterans’ Affairs (SVAC) announced the “Veterans First Act,” an omnibus provision focused primarily on VA accountability for employees and whistleblower protection.  The nearly 400-page bill also contains numerous other provisions addressing caregiver benefits, prompt payment under the Choice program, enhanced education benefits, opioid over-prescription among veterans, and veteran homelessness.

On the benefits front, this provision includes the Fully Developed Appeals legislation previously passed by the House, but at this time does not include the appeals reform provisions proposed by VA as the result of the appeals summit meetings.  (See 03.17.16 post on S.2473 in NOVA’s Outreach, Regulatory, and Legislative Information Forum.)

To be clear, the Senate is not necessarily ruling it out, as noted in their one-page summary of the benefits provisions:  “Requires the VA to carry out a fully-developed appeals pilot program, which will allow the VA to start testing the concept of a heavily streamlined process and will not preclude a more comprehensive reform package when it is ready.

This bill would also temporarily expand the number of judges serving on the United States Court of Appeals for Veterans Claims from seven to nine through 2020, extend certain life insurance benefits to judges, and modify the requirements for the Chief Judge so a judge must generally have three years remaining on his or her term to qualify.

The SVAC press release is available HERE; the one-page summary of benefits-related provisions is available HERE; the entire bill is found HERE.

Chairman for the House Committee on Veterans’ Affairs, Rep. Jeff Miller responded to this development, stating that if the measure passed the Senate, he looks forward to “immediately engaging in conference committee negotiations in order to move a VA reform package to the president’s desk.”  You can view his statement HERE.

VA Mails Development Letter to Those Affected by Dropped Evidence in 2015

VA has mailed a development letter to claimants and private representatives (where there is one) affected by an “application defect” that occurred when uploading documents on both the VA’s eBenefits and Stakeholder Enterprise Portal (SEP) sites.  The defect resulted in users being incorrectly informed that documents were successfully uploaded, when in fact the documents may have been rejected.  These errors occurred from August 1, 2015 through December 21, 2015.

According to VA, there are 9,300 affected veterans and 10,000 affected claims, involving approximately 80,000 documents.  Though VA was able to deploy a fix for the problem on December 21, 2015, VA was unable to retrieve the lost records or recreate the content.  VA informed NOVA that a development letter was sent to affected claimants on April 21, 2016.  To view the draft development letter, click HERE.

If the claim is still pending:

  1. VA will send the development letter to the claimant and his or her private representative.
  2. VA will wait 30 days before making a decision.
  3. Supplemental development can be waived.
  4. Submission of additional records in this instance will not remove the veteran from the FDC program.
  5. The veteran/representative will need to send the first page of the development letter or statement affirming the evidence is a resubmission of lost documents with any evidence that is resubmitted.

If the claim has been closed:

  1. VA will send the development letter to the claimant and his or her private representative.
  2. VA will take no further action until they receive a response; the veteran will have one year from the date of the letter to resubmit evidence.
  3. The veteran/representative will need to send the first page of the development letter or statement affirming the evidence is a resubmission of lost documents with any evidence that is resubmitted.

Feel free to contact Diane Boyd Rauber at drauber@vetadvocates.org if you have any questions.  In addition, Christi Greenwell – Assistant Director, Procedures, Compensation Service – is available to answer questions you might have about specific cases.  She may be reached at christi.greenwell@va.gov

Get Ready for NOVA's 2016 Fall Conference in Providence, RI – Sept. 22-24

The NOVA 2016 Fall Conference will be held September 22-24, 2016 at the Omni Hotel in Providence, RI.  The conference includes a one day New Practitioner Session scheduled for Thursday, September 22, and the general seminar, scheduled for Friday and Saturday, September 23 & 24.  Conference registration opens in June, but you can reserve your hotel stay at the Omni today!

The NOVA Conference is intended for both new practitioners to the area of veterans’ law and more advanced practitioners.  The seminar will increase your knowledge, confidence, and expertise in representing veterans before the U.S. Court of Appeals for Veterans Claims (CAVC) and the Department of Veterans Affairs (VA).  In addition, your time may be credited to your jurisdiction’s CLE requirements. Please take advantage of our over 20-year legacy and register today! We hope to see you in Providence!

About the Omni Providence Hotel

This landmark hotel in Providence is connected to the Rhode Island Convention Center, Dunkin’ Donuts Center, and the new Providence Place Mall.  With this premier downtown location, guests at Omni Providence Hotel will find themselves within walking distance of the city's main college campuses, historic attractions, gourmet restaurants, upscale shopping, entertainment and more. Providence was recently named No. 3 in America's Most Charming Cities by Travel + Leisure.

Visitors to the hotel enjoy their choice of dining venues including Centro RestaurantFlemings Prime Steakhouse and Wine Bar and Morsel's.  For those in search of the spirit of the city, Omni Providence Hotel, with its stunning views of downtown, places you within reach of all the best that Providence has to offer.  Satisfying the needs of both the active and serene traveler, the hotel provides access to the Capital Club Fitness Center and proximity to beaches, golf courses, and tennis for endless options to relax and exercise.

The Omni Providence Hotel is now accepting reservations for NOVA's 2016 Fall Conference.  Make your reservations today!

The NOVA Room Block Rate is $179 plus tax, per night, single or double occupancy, and is available 3 days prior and 3 days after the conference based upon room availability.  Room reservations must be made by 5 p.m. Eastern Time on Sunday, August 21, 2016 for this rate to be honored.

To book your room for the 2016 Fall Conference, click  HERE or call 1-800-THE-OMNI.  If you book by telephone, please be sure to mention that you are with the ‘National Organization of Veterans’ Advocates’ or ‘NOVA’ to receive our special room block rate!

Applications are now being accepted for the William G. Smith Scholarships.  Submit your application by July 22, 2016.

Scholarships have been created in memory of NOVA Founding Member William G. Smith, Esq., who provided leadership and support to countless practitioners in veterans’ law. Scholarships cover the cost of registration only and are available to individuals who are not financially able to attend, and who would not otherwise be able to attend the seminar due to financial hardship.  These scholarships are designated for attorneys, non-attorney practitioners, law students, and also accredited veteran’s service representatives.

To apply for the William G. Smith Scholarship Award, please complete and submit the scholarship application by July 22, 2016.  To complete the scholarship application, click HERE.

The granting of scholarships as well as the number of recipients shall be at the sole discretion of the NOVA Board of Directors.

Want to Improve Cash-Flow in Your VA Practice? Register for NOVA’s Webinar!

It’s only two weeks away!!  NOVA’s spring webinar – Build for Success:  Three Tools to Improve Cash-Flow in Your VA Practice – will take place on May 18, 2016 at 2:00 p.m. Eastern Time.  In this 90-minute session, NOVA Board Member and Veterans Law Attorney Chris Attig will continue to teach attorneys how to add a viable practice area to a small or solo law firm.

In this webinar, Chris will get down to “brass tacks,” presenting his three keys to building a financially viable Veterans Law practice.  Specifically, he will talk about how to:  1) plan ahead for good case selection, 2) write play-sheets to streamline workflows in an administrative law practice, and 3) build relationships vital to your success.

If you are building a VA practice and looking for a solid course of action, please don’t hesitate to attend. The webinar will focus on what you need to know to be successful!  Please join us on May 18 to learn more about how to turn your vision into a reality.

Joining NOVA in 2010, Chris has become a regular presenter at NOVA conferences, and serves on the Board of Directors.  He has also instructed veterans in “DIY” claims preparation through his popular Veterans Law Blog and his series of Veterans Law eBooks and Training Videos.

Don’t delay!  To register for this webinar now, click HERE.

Attend IDGA’s VA Healthcare Event on May 16-18 at Sheraton Pentagon City

The Institute for Defense and Government Advancement (IDGA) will be hosting its “VA Healthcare 2016” event on May 16-18, 2016 at the Sheraton Pentagon City, Virginia.  The event kicks off with a Workshop Day, followed by the 2-day Main Conference. To access the VA Healthcare 2016 homepage, click HERE.

At VA Healthcare 2016, senior veteran healthcare officials and experts will discuss the latest developments, technologies, and strategies necessary to strengthen the VA Healthcare system.  The event will include sessions on post-traumatic stress disorder, traumatic brain injury, alternative medicine, streamlining processes, electronic health records, women's healthcare, and more.

NOVA Treasurer Matthew Hill will discuss benefit accessibility for veterans on Workshop Day, Monday, May 16 at 3 p.m.  To download the full event agenda and speakers, click HERE.

Featured Speakers include:

  • David Shulkin, Under Secretary for Health, VHA
  • Danny Pummill, Acting Under Secretary of Benefits, VBA
  • Carolyn Clancy, Deputy Under Secretary for Health for Organizational Excellence, VHA
  • Robin Hemphill, Acting Assistant Deputy Under Secretary for Quality, Safety and Value, VHA

Free admission is available for active military and government personnel, but you must register no later than May 9 to receive a complimentary pass.  For details, click HERE.

Please note that although the subject matter of this IDGA conference relates to VA healthcare, this is a non-VA event.  IDGA is solely responsible for its content and neither the Department of Veterans Affairs nor any of its components (VHA, VBA) have sponsored or endorsed this event or IDGA.

Learn How Clifford Vocational Services Helps Veterans with TDIU Eligibility

A frequent exhibitor at NOVA Conferences, Clifford Vocational Services, Inc. has experts who understand the intricacies involved with eligibility for TDIU.  Co-founders Patrick and Jan Clifford regularly provide vocational evaluations and opinions regarding a veteran’s ability to work based on service-connected disabilities.   Clifford Vocational Services also provides similar opinions for Social Security disability, personal injury, worker's compensation and long term disability cases.

“Oftentimes, the veteran may qualify for TDIU based on a single disabling condition.  We understand that TDIU may be denied because of the VA’s opinion that the veteran can perform sedentary work,” according to Patrick Clifford, nationally certified vocational evaluator and president of Clifford Vocational Services.

“We carefully define the demands and requirements of sedentary work and demonstrate how a service-connected disability may prevent the veteran from functioning in that environment.  Often, the veteran may possess the physical capacity to perform sedentary work but is not capable of its performance from a psychological or cognitive perspective,” Patrick explains.

Patrick has worked as a vocational evaluator since 1987, at which time he headed the Disability Evaluation Clinic with Goodwill Industries.  In this capacity, he worked with the mentally retarded, schizophrenic, physically handicapped, and economically disadvantaged populations, including obtaining and analyzing statistical information regarding these populations.  As a vocational evaluator and job placement specialist, Patrick has worked with industrially injured workers since 1990 in Florida, South Carolina, North Carolina, and Georgia.

In 1997, Patrick founded Clifford Vocational Services and has functioned as a vocational evaluator working with catastrophic injury, brain injury, and orthopedic injury.  He has been admitted in Civil and Superior Court as well as Industrial Commission and Social Security Disability hearings in the Southeast and U.S. Virgin Islands.  Patrick has testified on over 125 occasions.  In 1999, he also co-founded Pinnacle Physician’s Network, a provider of medical services, physical therapy, and management of industrial injury to local employers in North Carolina.

Jan Clifford has worked in the area of physical and vocational rehabilitation for her entire career, starting out in physical fitness management and moving into physical therapy management.  She oversaw the Industrial Work Rehabilitation programs at Rehability, where she taught and managed the Work Hardening and Work Conditioning return-to-work programs.  Jan has conducted job site analyses, taught injured workers how to do their jobs differently in order to return to work safely, and performed physical restoration and functional capacity evaluations through a multidisciplinary team.

As co-founder of Clifford Vocational Services and Pinnacle Physician’s Network, Jan serves as a disability analyst and vocational specialist, performing site analyses, working with employers on return-to-work efforts, performing evaluations, and serving as a vocational expert in Social Security hearings for the Office of Disability Adjudication & Review.  Her primary focus continues to be on assessment and efforts directing successful return to work and daily activities of injured and non-injured persons.

Assisting Patrick and Jan at Clifford Vocational Services is William Young Davis, Ph.D., an economist and professor at the University of North Carolina.  Dr. Davis has testified as an expert witness in Federal District court.  His testimony concerned the net present value of the economic loss of permanently injured individuals.  Other cases include calculation of net present values of future medical expenses, lost business profits, and the calculation of net present value of loss of future earning capacity.

If you are interested in learning more about Clifford Vocational Services, or would like to view a recent favorable decision made on behalf on their clients, please contact:

Patrick Clifford, Vocational Expert
Clifford Vocational Services
PO Box 248
Landrum, SC 29356
(980) 297-8245 (cell)
Or via email:  Pat@cliffordvocationalservices.com

Denying NOVA’s Petition, Federal Circuit Upholds Standard Forms Regulations

On April 7, 2016, the United States Court of Appeals for the Federal Circuit (Federal Circuit) issued its decision in National Organization of Veterans’ Advocates, Inc., v. Secretary of Veterans Affairs, No. 2015-7025.  NOVA challenged the validity of VA’s final rule requiring all claims and appeals originate on VA forms.  Standard Claims and Appeals Forms, 79 FR 57,660 (Sept. 25, 2014).  The Federal Circuit previously joined the related petitions of the Veterans Justice Group (No. 2015-7021) and American Legion, AMVETS, Military Order of the Purple Heart, Vietnam Veterans of America, and National Veterans Legal Services Program (No. 2015-7061) with NOVA’s petition.  The parties argued the matter on October 8, 2015; Kenneth Carpenter, Carpenter Chartered, argued for NOVA.

The Federal Circuit denied the petitions and found the final rule valid.  In its analysis, the court divided the challenges to the amended regulations into four categories: (1) intent to file; (2) claim initiation; (3) appeals; and (4) duty to develop claims.  The court’s complete decision can be read HERE.

Intent to File – First, the Federal Circuit determined VA’s “intent to file” provision in the final rule was a “logical outgrowth” of the proposed rule.  “Under this standard, an agency’s final rule need not be identical to the proposed rule.”  The Federal Circuit concluded “interested parties” should have anticipated the change in the “intent to file” provision was possible given the notice contained in the proposed rule.   Furthermore, the Federal Circuit found the final rule was more favorable, providing increased opportunities for the veteran to establish a claim’s effective date.  “The Final Rule does not go as far as the Proposed Rule because it does not limit the intent to file process to a VA web-based electronic claims application system.”

Claim Initiation – Regarding informal claims, American Legion argued Congress codified VA’s rule that informal submissions can establish an effective date when it enacted the effective date statute in 1957 and VA cannot amend by regulation to prohibit informal submissions.  Applying Chevron, the Federal Circuit concluded that, “[w]hile Congress modeled the 1957 effective date provision on pre-1957 VA regulations,” it was indirect and did not include any of the operative terms from the 1956 regulation.  “There is no reason to presume that when Congress codified the effective date regulation, it also legislatively adopted, sub silentio, the informal claims regulation.”

In addition, Congress did not choose to codify the informal claims provision of 38 C.F.R. § 3.27 when it codified numerous other pre-1957 regulations and legislative history is silent on the issue.  The Federal Circuit therefore rejected American Legion’s arguments that Congress codified 38 C.F.R. § 3.27 when it “took action” numerous times on 38 U.S.C. § 5110 between 1957 and 2014 and by enacting 38 U.S.C. § 5102(b)-(c).

The Federal Circuit also concluded that VA’s requirement for claims to be initiated on a standard form was consistent with 38 U.S.C. §§ 501(a)(2) and 5110(a)(1).  American Legion argued the rules were arbitrary and capricious because VA did not establish a rational connection between its requirement and its objectives, and also failed to consider the impact of the final rule on veterans.  In response, the Federal Circuit found “VA’s stated reason for favoring standard claims forms is sufficient to show that the Final Rule’s standard form requirement is rational” and “VA is in a better position than this court to evaluate the inefficiencies in its system.”

The Federal Circuit determined VA also had adequately considered the rule’s impact.  Any disproportionate impact on veterans with limited or no internet access is “attenuated” because the provision allows for initiation of a claim by phone.  “If anything, the Final Rule is more claimant-friendly because it increases the menu of options available to the initiating claimant.”

Appeals – NOVA argued congressional intent only required a notice of disagreement (NOD) to include an expression of the intent to appeal and disagreement with a determination.  NOVA also argued VA was precluded from requiring a standardized form to initiate an appeal due to the use of the term “notice of disagreement” in 38 U.S.C. § 7105, instead of the term “forms of application” used in other parts of Title 38.  Relying on its decision in Gallegos v. Principi, the Federal Circuit concluded 38 U.S.C. § 7105 “is not exhaustive and does not restrict the VA’s authority to fashion or articulate additional requirements claimants must satisfy in order to complete an NOD.”  The court further determined “nothing inherent in the term ‘notice’” precludes VA from requiring a standard VA form for filing of NODs.

The Federal Circuit also rejected Veterans Justice Group’s argument that requiring claimants to identify specific issues of disagreement on the standard form is arbitrary, accepting VA’s efficiency rationale.  “Although the VA’s mandatory standard form increases the burden to some claimants when initiating the appeals process, to the extent standardization augments the overall efficiency of the appeals process, individual claimants also reap its benefits.”

Duty to Develop Claims – Finally, the Federal Circuit addressed the arguments that 38 C.F.R. §§ 3.160(a)(3)-(4) and 19.24(b) illegally restrict claims raised by the record but not specifically identified by the veteran, contrary to 38 U.S.C. § 5107(a).  The court applied the first step of Chevron and concluded 38 U.S.C. § 5107(a) “does not directly address whether the VA must develop evidence outside the scope of a pending claim.”

Applying the second step of Chevron, the Federal Circuit held the challenged portions of the rule are a reasonable interpretation of the statute.  “In fact, the regulations do not substantively diverge from the VA’s prior regulation; they do not alter the VA’s general practice of identifying and adjudicating issues and claims that logically relate to the claim pending before the VA. . . . We are even more convinced of this determination because, contrary to Petitioners’ position, a veteran’s claim is not extinguished if the unclaimed condition is not reflected in the claim presented to the VA because the claimant may file a new claim directed to the unrelated evidence.”

Arguing as Amici in Robinson v. McDonald, NOVA Disputes Content of the Record

On March 29, 2016, NOVA argued as amici in Leroy S. Robinson, Jr. v. Robert A. McDonald, No. 15-0715, along with The Veterans Justice Group and Law School Clinic Directors and Professors before the U.S. Court of Appeals for Veterans Claims (CAVC).  Kenneth Carpenter, Carpenter Chartered, argued on NOVA’s behalf.  The veteran, represented by NOVA member Tara Goffney, disputed the content of the record before the agency (RBA), noting missing records and requesting review of the original paper file.  The Secretary took the position that the veteran’s claims file was scanned into VBMS prior to BVA review, the “original record” is now the electronic file, and the underlying paper documents can no longer be reviewed by appellant’s counsel.

In its order inviting interested amici to submit memoranda of law, the CAVC noted “the issue is whether the Secretary must provide an appellant with the opportunity to inspect and copy the original paper documents in the claims file (source documents), notwithstanding VA’s scanning such documents into the Veterans Benefits Management System (VBMS) or Virtual VA (VVA) for claims adjudication purposes.”

NOVA focused its argument on CAVC’s jurisdiction to enforce its own rules, specifically in this case, Rule 10.  NOVA argued VA unilaterally and illegally redefined the term “claims file” as contemplated by Rule 10 in its pleadings and inappropriately seeks a three-judge panel to amend the rule.   Unlike in other appellate forums, appellee VA controls the content of the RBA and, therefore, has a fiduciary responsibility in exercising that control.  Furthermore, because VA is a party to every proceeding, NOVA argued CAVC must hold VA accountable under Rule 10 because of the potential for their position to affect all cases coming before CAVC.

You can listen to the entire argument HERE.

Blue Water Navy Vietnam Veterans Association Challenges M21-1 Provisions

The Blue Water Navy Vietnam Veterans Association (BWNVVA) recently petitioned the Federal Circuit for review of the VA’s February 2016 M21-1 provisions governing claims based on Agent Orange exposure for “blue water” Navy veterans.  (The provisions at issue are found at M21-1, Part IV, Subpart ii, Section H.2.)  To read the VA’s Blue Water Navy Fact Sheet, click HERE.

BWNVVA argued the Federal Circuit has jurisdiction because the M21-1 provisions are “regulations” as contemplated by 5 USC 552 (a)(1)(B)-(E).  “Specifically the regulation is a statement of the general course and method by which its functions are channeled and determined, constitutes a rule of procedure, is an interpretation of general applicability formulated and adopted by the agency and is a revision and/or amendment of the foregoing.”  BWNVVA further argued the Secretary failed to comply with the Gray decision by continuing to use “depth and ease of entry” as standards for inclusion as an “inland waterway,” as opposed to considering “the probability of exposure.”

In addition to arguing the regulation was not properly published, BWNVVA contended the regulation is arbitrary and capricious.  As previously noted, the Secretary failed to base his policy on “the probability of exposure” required by Gray, rather drawing a “straight line across each opening in the landmass leading to the open ocean.”  The Secretary also failed to use accepted definitions of inland or internal waterways and “ignored hydrological evidence that shows the presence of Agent Orange in Nha Trang harbor 20 years after the end of the war.”

Finally, BWNVVA argued the regulation is unsupported by substantial evidence.  BWNVVA noted evidence of discharge plumes from the Mekong River that could travel several hundred kilometers within two weeks.  Studies by the Institute of Medicine (IOM) found dioxin adhered to sediment, direct spraying took place along riverbanks and washed into rivers, and exposure occurred through “the ingestion of distilled water prepared from contaminated marine water.”

To read more on this topic, go to www.bluewaternavy.org.

VA Identifies 14,000 Beneficiaries Delayed for Fiduciary Appointments

On March 24, 2016, the Department of Veterans Affairs (VA) announced that an information technology system that it deployed in 2014 and enhanced in 2015, the Beneficiary Fiduciary Field System, allowed it to identify claim processing errors affecting approximately 14,000 Veterans and survivors.  These Veterans’ and survivors’ claims were initially filed over many years, with some going back as far as 2000.  The errors concern cases in which VA had proposed that due to disability or age the beneficiary was unable to manage his or her VA benefits without assistance, but did not complete the action by transferring it within VA for appointment of a fiduciary.  These cases represent approximately four percent of such proposals since 2000.

VA’s Veterans Benefits Administration (VBA) became aware of a potential problem when it received inquiries about delayed fiduciary appointments from affected beneficiaries or their families.  A system-wide review by VBA using the new technology found claim processing errors that had occurred at each of its regional offices and pension management centers across the country.  In these cases, one or more of the procedures for controlling and transferring the workload were not followed, resulting in the fiduciary appointment delays.

“We sincerely apologize to these Veterans and their survivors for this regrettable delay,” said VA Deputy Secretary Sloan D. Gibson.  “We are taking immediate action to complete these cases, initiate the fiduciary appointment process, and ensure that these errors do not happen again.  We must also continue to transform the claim process for beneficiaries needing fiduciary assistance and properly resource our fiduciary program to ensure that beneficiaries have the help they need to effectively use the benefits they earned.”

VBA has set up a dedicated team to immediately review the cases, notify beneficiaries, complete the claim processing steps, and appoint a fiduciary as quickly as possible.  Because the law requires VA to check the qualifications of the fiduciaries it appoints, including conducting a face-to-face interview, VA anticipates that it may take as much as six months or more to complete the fiduciary appointment process for these beneficiaries.  However, the beneficiaries will continue to receive their monthly benefits as VA works to appoint a fiduciary to assist them.

Additionally, VBA has already modified its systems to better track this workload and plans to remove manual transfer processes that are prone to error through enhancements to its automated claims processing system, the Veterans Benefits Management System.

The VA fiduciary program provides oversight of beneficiaries who, due to injury, disease, or the infirmities of age, are unable to manage their VA benefits.  VA’s role is to conduct oversight of beneficiaries to ensure their well-being, and oversee the fiduciaries it appoints to assist beneficiaries with the management of their VA benefits.  In 2015, VA protected more than 224,000 beneficiaries, who received over $3 billion in VA benefits.  Beneficiaries in the fiduciary program include Veterans, surviving spouses, dependent parents, adult children, and minor children.  The number of beneficiaries served by the program has grown by 50 percent since 2011 and VA projects continued growth as it increases its benefit claims production (1.4 million claims in 2015) and the beneficiary population ages.

Brief Notices

VA Proposes Rule Change to Clarify Extraschedular Review

VA published a proposed amendment to 38 CFR 3.321(b)(1) on April 20, 2016.  81 FR 23228.  VA is amending the regulation to comport with its interpretation of the regulation as argued in Johnson v. McDonald and rejected by the Federal Circuit.  The Federal Circuit found the plain language of the regulation – using plural forms of “schedular evaluations” and “disabilities” – was unambiguous.

Therefore, VA was required to consider the need for extraschedular review by evaluating the collective impact of multiple service-connected conditions, as well as the impact of a single disability.  In the proposed amendment, VA “clarifies” the regulation to provide that extraschedular consideration “is available only for an individual service-connected disability but not for the combined effect of more than one service-connected disability.”

Comments are due June 20, 2016.  NOVA’s Regulation Comment Committee is reviewing the proposal to determine whether NOVA will provide comments.

 

Purchase NOVA’s Webinar on Extraschedular (TDIU) Ratings

In February, Founding NOVA Member Kenneth Carpenter delivered an outstanding webinar on extraschedular (TDIU) ratings.  A pioneer in the field of Veterans Law, Ken covered three ways to seek an extraschedular rating, total ratings under 38 C.F.R. §§ 4.16(a) and (b), and less than total ratings under 38 C.F.R. § 3.321(b)(1).  He also discussed the case law and strategies for developing a case to increase the chances for an award.

 To purchase this webinar now, click HERE.

 

Register for the Federal Circuit's 2016 Bench & Bar Conference

Federal Circuit Bar Association will be hosting its annual Bench & Bar Conference at the Nashville Omni in historic Nashville, Tennessee.  The conference will begin on Wednesday evening, June 22nd with a welcome reception and end on Saturday afternoon, June 25th with the final session at 12:15 pm.

Please visit the Federal Circuit Bar Association's website for additional information.

 

Visit the “NOVA Store” for Webinars, Conference Videos

The NOVA Store is your “one-stop shop” to purchase webinars and conference videos all in one place.  Now you can view the full range of training materials we have to offer with just the click of a button.  Currently, NOVA has 10 webinars to choose from in the store, along with videos from New Practitioner and General Sessions.  Don’t forget, NOVA members receive a discounted price on every purchase!

To browse the NOVA Store, click HERE.

 

Check Out What’s New in NOVA’s Document Library

NOVA staff has posted several new documents on our website for easy reference.  Visit the NOVA Document Library today to find these and other valuable resources:

https://vetadvocates.org/download/2016-04-19-memo-piv-private-attorney-2016/

https://vetadvocates.org/download/2016-04-11-vdc-dropped-evidence-development-letter-final/

https://vetadvocates.org/download/missing-veteran-address/

 

Mark Your Calendar for Upcoming NOVA Conferences

Save these dates and plan to join NOVA for exceptional training at a location that’s right for you!

Fall Conference 2016
Providence, RI – September 22-24, 2016
Hotel:  Omni Providence Hotel

Spring Conference 2017

San Antonio, TX – April 20-22, 2017

Hotel: Hyatt Regency San Antonio Riverwalk

Fall Conference 2017

St. Petersburg, FL – October 12-14, 2017

Hotel: TradeWinds Island Resorts

 

NOVA Welcomes New and Returning Members!

NOVA would like to welcome the following members to the NOVA community.  We look forward to meeting you and working with you to help better serve our nations’ veterans:

Karyn AustinThomas Kiely, PLLC, Mathews, VA
Mike BerensBerens Law Firm, PLLC, Seattle, WA
Lindsey BrighamVeterans Advocacy Clinic Stetson University College of Law, Ruskin, FL
Richard Dawahare McClelland & Associates, PLLC/ElderLawLexington, Lexington, KY
Karen DiMarcoScaringi & Scaringi, P.C., Carlisle, PA
Raymond EdwardsR.L. "Ed" Edwards, Attorney & Counselor at Law, Inc., Pass Christian, MS
Mark FlaniganFlanigan & Flanigan, PLLC, Fort Worth, TX
Eric GangGang & Associates, LLC, Hackettstown, NJ
Jill HudsonHudson Veteran Law, Chandler, AZ
Jake JagdfeldJohnson Becker, PLLC, Minneapolis, MN
Paul JenningsTexas Tech School of Law, Dupont, WA
James JohnsonJohnson Law Firm, P.C., Woodbridge, VA
Kevin JohnsonLaw Office of Kevin M.C. Johnson, S.C., Belgium, WI
Robert McClellandMcClelland & Associates, PLLC/ElderLawLexington, Lexington, KY
William NaborsNabors Law Group, Atlanta, GA
Ricardo PrietoPrieto Law Office, Fajardo, PR
Roland Arroyo RojasMontalvo & Arroyo, Mayaguez, PR
Jack RosenkranzRosenkranz Law Firm, Tampa, FL
Kimberly SheltonShelton Law, LLC, Charleston, SC
Brandi SmithLaw Offices of Kenneth Hiller, PLLC, Amherst, NY
John Anthony Vessel
Marc Whitehead & Associates, Houston, TX
Emilio VilaSan Juan, PR

 

 

 

 

Past Newsletters

To read other editions of our Veterans' Advocate Insider, please click HERE.