Veterans’ Advocate Insider – February & March 2016 Edition



Message from Director of Legislative and Regulatory Affairs

As mentioned in Las Vegas, please take a few minutes to subscribe to NOVA’s Outreach, Regulatory, and Legislative Forum.  This forum was started after the Fall 2015 Conference in Chicago as a way to communicate important information to members and update you on NOVA’s activities in these areas.  For example, some recent posts include:

  • Follow-up information from the Attorney Fee Coordinator presentation in Las Vegas;
  • VA’s transition to the M21-1 “Live Manual”;
  • Details regarding National Work Queue (NWQ) deployment; and
  • Description of the Express Appeals bills pending in Congress.

During the legislative update in Las Vegas, we discussed VA’s proposed 2017 budget, to include efforts to develop a “streamlined” appeals process.  VA’s original budget proposal included the following key items:  (1) closing the evidentiary record at the time of the rating decision with limited exceptions; (2) eliminating hearings; (3) transferring jurisdiction to BVA upon NOD filing; (4) redefining reasons and bases as a “plausible statement”; and (5) amending the definition of “prevailing party” under EAJA.  Secretary McDonald characterized the proposal as a “straw man” in the budget, and he asked stakeholders to work with VA in crafting a different proposal for appeals reform.

Under the direction of Deputy Secretary Sloan Gibson, VA convened a three-day summit.  In addition to VBA and BVA officials, NOVA participated with numerous VSOs and NVLSP.  Discussions of appeals reform proposals are ongoing; VA would like to see legislation passed in the remaining days of this election year.  NOVA is actively advocating for reforms that protect veterans’ due process rights and recognize the veteran’s right to his or her choice of representative.  Please continue to follow the forum for details as these meetings continue. 

In addition to following legislative matters of interest, NOVA continues to press VA on issues relating to electronic access, proper notice to attorneys and agents of decisions and other important claims activity, accreditation, attorney fee issues, and ex parte communication.  If you have concerns regarding these or other issues, please feel free to contact me directly at drauber@vetadvocates.org.

NOVA Meets with VA Officials on Veterans’ Appeals Reform, Electronic Access

On February 11, 2016, NOVA wrote to VA Secretary Robert McDonald outlining some of our ideas for appeals reform, in response to his recent testimony on Capitol Hill.  In response, NOVA was invited to meet with VA officials on March 4, 2016 to discuss these ideas and be included in ongoing dialogue about appeals reform.  NOVA also requested the Secretary’s assistance in helping our members to gain access to their clients’ electronic files.  To view the letter in its entirety, click HERE.

NOVA’s ideas for appeals reform include:

  • Amending 38 U.S.C. § 7105 to eliminate the statement of the case and submission of a form 9 to appeal a denied claim, after ensuring VA provides a detailed rating decision encompassing all reasons and bases for that decision;
  • Maintaining a Decision Review Officer (DRO) process within the system;
  • Amending section 7105 to require VA to certify an appeal to the Board of Veterans’ Appeals (Board) within 60 days;
  • Amending 38 U.S.C. §§ 5109B and 7112 to ensure expeditious treatment of remands;
  • Providing the Board with authority to develop evidence without the need to remand an appeal
  • Prohibiting VA from ordering additional examinations/opinions when competent private medical evidence/treating physician evidence has been submitted in support of an appeal; and
  • Maintaining an open record.

NOVA supports reform that streamlines the appeals process without infringing on a veteran’s right to submit additional evidence at any time. NOVA has testified in the past on appeals reform, e.g., before the House Committee on Veterans’ Affairs in January 2015, and categorically opposes the notion of “closing the record.”

NOVA’s thoughts regarding electronic access include:

In VA’s transition from paper to electronic files, not all attorneys and agents have been afforded electronic claims file access.  Without this access, attorneys and agents are severely handicapped in providing effective and efficient representation to veterans.  If the veteran chooses an attorney or agent as his or her representative, that individual should have the same electronic access as all other representatives.

NOVA has been working with individuals in VBA to secure access to the electronic records of claimants we represent for several years with limited success.  While some attorneys and agents have electronic access through the Stakeholder Enterprise System (SEP), that system provides little or no access to the information contained in the claimant’s VA file.  The Veterans Benefits Management System (VBMS) contains the claimant’s VA file, as well as other valuable information, but few attorneys and agents have gained access to VBMS.  As VA seeks to complete scanning of all files, it is critical the veteran’s chosen representative has VBMS access.  VA has acknowledged that “all claimants have the right to representation before the department in claims affecting the payment of benefits or relief” and that representation is provided by “Veterans Service Organizations (VSOs), attorneys, agents and other accredited individuals to ensure that such claimants have responsible, qualified representation to assist in the preparation, presentation, and prosecution of claims for Veterans’ benefits.”  M21-1, I.3.B.1.a., A Claimant’s Right to Representation.  VA further states its policy “in working with POA representatives is that of an equal partnership” and “VA employees are expected to render timely and effective assistance to POA representatives.”  M21-1, I.3.B.1.c., VA’s Partnership Policy with POAs.  VSOs already have VBMS access, with background checks provided by VA.  Fulfillment of VA’s stated policy requires that any VA-accredited representative entrusted with a POA by a veteran be provided full electronic access to his or her file.

Furthermore, NOVA believes that providing electronic access to the veteran’s chosen representative will save VA time in the adjudicatory process, e.g., reduce FOIA requests for copies of claims files and reduce status inquiries.  This outcome certainly aligns with the Secretary’s stated objectives of deciding appeals expeditiously and reducing the appeals backlog.

In conclusion, NOVA requests VA provide full and complete electronic access to all attorneys and agents – the same access the VSOs have been provided.  NOVA supports sensible appeals reform that benefits veterans and preserves their rights.  We understand there is an ongoing VSO working group on appeals reform, and NOVA respectfully requests a seat at the table.

Federal Circuit Denies SWAN/VVA Petition for Review of VA’s MST Rulemaking Decision

The Federal Circuit recently denied the Service Women’s Action Network (SWAN) and Vietnam Veterans of America (VVA) petition for review of VA’s denial of their request for a new regulation to address PTSD claims based on military sexual trauma (MST).  Service Women’s Action Network, Vietnam Veterans of America v. Secretary of Veterans Affairs, No. 2014-7115 (March 3, 2016).

As the result of disparity between the grant rate of non-MST-based PTSD claims and MST-based PTSD claims, SWAN and VVA petitioned VA to promulgate a new subsection of 38 CFR 3.304.  This new provision – 38 CFR 3.304(g) – would establish a separate evidentiary presumption for PTSD caused by MST:

If a stressor claimed by a veteran is related to the veteran’s reported experience of military sexual trauma and a psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of a mental health condition and that the veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor.

The Secretary denied the petition.  SWAN/VVA appealed, arguing the denial was arbitrary and capricious, and violated the equal protection clause of the Fifth Amendment.

Noting its review was limited to whether the agency’s decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” the Federal Circuit denied the petition to review the Secretary’s denial.  The court noted the key factor in its analysis was whether the agency used reasoned decisionmaking in its decision to deny the petition.

Upon review, the Federal Circuit found the denial (1) “explained that the current regulation specifically addresses petitioners’ stated concern regarding ‘the difficulty of producing evidence to prove [the] occurrence of an in-service personal assault'”; (2) detailed VA’s training programs on MST-based claims that indicated improved MST-based PTSD grant rates; and (3) clarified “the evidentiary burden for PTSD caused by other stressors” requires a veteran to present threshold evidence of the specific stressor.

On this basis, the court concluded:

Although others may have determined that petitioners’ requested rule is the best way to ensure the accurate, fair, and sensitive adjudication of MST-based PTSD claims, that is not the question before us.  Ultimately, we are bound by the very limited and highly deferential standard of review, which only allows us to determine if the Secretary’s denial constitutes reasoned decisionmaking.  Because the Secretary adequately explained its reasons for denying the petition and continuing with the status quo, we conclude that the denial was not arbitrary and capricious.

The court also denied the petitioners’ constitutional challenge, finding VA’s requirement that a claimant provide corroborating evidence was rational and gender-neutral, and VA “did not engage in intentional gender discrimination.”  The court also found the distinction between MST-based PTSD and non-MST-based PTSD was rational.

In a dissenting opinion, Judge Wallach found the Secretary’s denial did not explain the facts and policy “for the maintenance of different evidentiary standards for PTSD claims resulting from MST, and PTSD resulting from other stressors.”  The dissent found this lack of explanation did not constitute reasoned decisionmaking, thereby providing “no basis for this court to conclude that the decision was not arbitrary.”

To read the full decision, click HERE.

Federal Circuit Denies NOVA Petition for Review of VA’s Substitution Regulations

On January 13, 2016, the Federal Circuit issued its decision on NOVA’s petition for review of VA’s substitution regulations, as codified at 38 CFR §§ 3.1010, 20.900(a)(2), and 20.1302.  The Federal Circuit denied the petition.

NOVA contended that requiring survivors to provide evidence of eligibility when VA is already aware of their status is arbitrary and capricious.  The Federal Circuit concluded “the status of a potential substitute is not static” and “eligibility to substitute can be conclusively determined only at the time of the claimant’s death.”  The Federal Circuit cited divorce, death, or a change in dependency status as reasons the status of an apparent substitute may be altered.

The Federal Circuit further found 38 USC § 5121A(a)(2) was unambiguous in requiring the substitute to “present evidence of the right to claim such status.”  Because 38 CFR § 3.1010(d) “closely tracks” the statutory language, the regulation is not inconsistent with the statute.  The Federal Circuit concluded VA’s interpretation of section 5121A is entitled to Chevron deference and Brown v. Gardner is not for application in this case.

NOVA also challenged VA’s requirement that the Board of Veterans’ Appeals dismiss an appeal upon death of the appellant and the agency of original jurisdiction make a new decision on substitution eligibility.  The Federal Circuit determined it was reasonable for VA to task the agency of original jurisdiction with determining eligibility for substitution even when the case is with the Board.  “The DVA concluded that, consistent with the ‘one review on appeal’ principle, the agency of original jurisdiction should first decide whether to allow substitution, which would enable a dissatisfied prospective substitute to obtain Board review of the substitution issue on appeal.  If the Board were to decide the substitution issue in the first instance, there would be no appellate recourse for the claimant within the DVA.”

You can read the full decision HERE.

NOVA Participates as Amicus in Robinson v. McDonald, No. 15-0715

Along with NVLSP, Law School Clinical Directors, and The Veterans Justice Group, NOVA submitted a memorandum of law as amicus in Leroy S. Robinson, Jr. v. Robert A. McDonald, No. 15-0715.  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.”  The CAVC requested briefing on several issues, to include whether an appellant has the right to inspect and copy source documents, whether the Secretary must keep a copy of the paper records after scanning, what constitutes the RBA under Rule 10 after scanning, and what are the due process implications of the Secretary’s failure to provide source documents for review in an appeal before the CAVC.

The Court also granted amici leave to argue, allotting an additional 30 minutes to be divided upon amici as they determine.  Oral argument is scheduled for March 29, 2016 at 10:00 am.

VA Amends M21-1 with Updated Notice Requirements for RO Personnel

Over the course of the past year, through correspondence and meetings with VA, NOVA conveyed concern regarding inconsistent notice provided to private representatives.  Under M21-1, I.3.B.1.e., the regional office (RO) must “send all accredited private attorneys or claims agents a copy of any correspondence regarding the claim they represent.”  When decision notice is based on a rating decision, the RO is also required to send a copy of the rating narrative and code sheet.  However, NOVA continued to hear complaints from members that they were not consistently receiving correspondence, even when a “cc” line was included for a “private attorney.”

On February 1, 2016, VA added two new sections to the M21-1, addressing the provision of notice required to representatives.  Specifically, section I.3.B.1.f requires RO personnel to list the full address of the private attorney or agent in the cc line.  “Including the full address in the cc line will allow mail processors to quickly and accurately address outgoing private attorney or claims agent copies of correspondence.”  In section I.3.B.1.g, VA has provided detailed instructions for editing the cc line to accomplish this task.

NOVA will continue to monitor the notice issue.  Should you have additional questions or concerns, feel free to contact Diane Boyd Rauber directly at our NOVA office.

Veterans’ Advocates Convene in Vegas for NOVA’s Spring Conference

Hundreds of advocates gathered in Las Vegas recently for NOVA’s 2016 Spring Conference.  The New Practitioner Session on March 10 drew 150 participants together to share the fundamentals of veterans’ law.  Close to 260 participants attended the General Session held on March 11-12.

After a long winter for many NOVA members, the City of the Lights proved to be the perfect destination.  We received many compliments on the conference setting – the all-new Tropicana Las Vegas – where folks relaxed in the casual yet elegant atmosphere that’s become a hallmark of NOVA conferences.

Unique to NOVA conferences, the New Practitioner Session was well received by those seeking essential “know how” from the best in veterans’ law.  Thanks to Sarah K. Hill (Overview of a VA Claim), Drew N. Early (Service Connection), Chris Attig (Downstream Issues), Jonathan Greene (When to Hire an Expert), Daniel Smith (How to Select Cases), and Robert Chisholm (How to Run a VA Practice) for a job well done!

The two-day Spring Conference enlists a small army of experts who delve into the nuts and bolts of VA law.  Short of repeating the General Session roster, the NOVA Board would like to thank ALL of those professionals who shared their knowledge and experience with the hundreds of advocates who came to hear them speak.  The survey feedback has been very positive.

Several guest speakers from outside of NOVA also addressed our assembly, including Congresswoman Dina Titus, House Committee on Veterans’ Affairs; Judge Alan G. Lance, Sr., United States Court of Appeals for Veterans Claims; James Ridgway, Board of Veterans’ Appeals; and Allison Blaisdell and Jacqueline Imboden, Department of Veterans Affairs.

Of course, it would not be a NOVA conference without Founding Member Kenneth M. Carpenter, whose presentations always spark excitement.  In addition, NOVA’s President, Glenda Herl, and NOVA’s Director of Legislative and Regulatory Affairs, Diane Boyd Rauber, gave a presentation on legislative updates.

Kudos goes to the members of the Seminar Committee, who volunteer their valuable time to planning NOVA’s semiannual training events.  Led by Chairman Ralph Bratch, the committee includes Chris Attig, Ken Carpenter, Robert Chisholm, Glenda Herl, Matt Hill, Bob Goss, and John Tucker.

A well-deserved note of appreciation also goes to NOVA staff members – Assistant Director Katy Whalen and Conference & Membership Coordinator Meghan Dunham – for their hard work over many months.  Each training conference poses its own set of unique challenges, and NOVA is grateful to both Meghan and Katy for handling the job with skill and patience!

To view photos from the event, click HERE.

Your feedback is very important to us!  If you attended either the New Practitioner Session or the Spring Conference (General Session) in Las Vegas, please take a few minutes to fill out the New Practitioner Session Survey and/or the Spring Conference Survey.  Let us know how we can change or improve our future conferences!!

NOVA Awards Top Honor to Veterans’ Advocate Michael R. Viterna

Washington, D.C. – The National Organization of Veterans’ Advocates, Inc. (NOVA) presented its most prestigious honor – the Kenneth M. Carpenter Achievement Award for Excellence – to Michael R. Viterna, longtime veterans’ disability attorney, pro bono advocate, and past NOVA president.  He accepted the award at NOVA’s spring training conference in Las Vegas this month.

Dedicated to upholding the legal rights of military veterans, NOVA created this award to honor its Founding Member Ken Carpenter and his immense contributions to veterans’ law.  First presented in 2002, the award is given to a NOVA member each spring to mark exemplary achievement in the spirit of the organization’s founders.

Mr. Viterna has practiced veterans’ law for nearly 21 years.  He is the founder and owner of Viterna Law in Belleville, Mich., a private practice dedicated to assisting veterans and their families appeal the denial of benefits from the Department of Veterans Affairs (VA).

His passion to help veterans extending far beyond the courtroom, Mr. Viterna served as the president of NOVA from July 2011 to December 2015.  During his leadership, membership in the nonprofit organization grew substantially as the VA’s inability to fulfill our nation’s promise to care for its disabled veterans became a national scandal.

Mr. Viterna advocated for reforms in the VA’s broken claims system, appearing before Congress with practical solutions to the agency’s most crippling challenges.  These included the transition of veterans’ records from paper to electronic files.  Mr. Viterna also fought hard for NOVA members to obtain electronic access to those veterans’ files.

Viterna Law is a recognized participant in the CVA/NOVA Pro Bono Advocates Program, a partnership between the Center for Veterans Advancement and NOVA, which provides free legal services to homeless and indigent veterans.  Before his practice of veterans’ law, Mr. Viterna spent 33 years as a medic in the U.S. Air Force, retiring with the rank of Chief Master Sergeant.  Just prior to his military retirement, he entered law school and was admitted into practice in 1995.

Did you know?  Recipients of the Kenneth M. Carpenter Achievement Award for Excellence include Wade R. Bosley (2015), Rick Little (2014), Richard P. Cohen (2013), Carol Scott (2012), Hugh D. Cox (2011), Theodore P. Jarvi (2010), Barbara J. Cook (2009), Robert V. Chisholm (2008) and Kenneth M. Carpenter (2001).

Robert B. Goss Named CVA-NOVA Pro Bono Advocate of the Year

Washington, D.C. – Two of the nation’s leading advocacy organizations for veterans – the Center for Veterans Advancement (CVA) and the National Organization of Veterans’ Advocates, Inc. (NOVA) – awarded the CVA-NOVA Pro Bono Advocate of the Year Award to Robert B. Goss, a Houston veterans’ law attorney and NOVA board member.   He accepted the honor on March 12 at NOVA’s Spring Conference in Las Vegas.

Established in 2009, the CVA/NOVA Pro Bono Advocates Program was created in response to the Department of Veterans Affairs’ (VA) initiative to end veteran homelessness and the increased demand for legal assistance from poverty-stricken veterans.  The annual award is given to an outstanding NOVA member who exemplifies the pro bono spirit by providing free legal services to veterans unable to afford them.

“As a result of his participation, Bob has provided tens of thousands of dollars in benefits to homeless veterans, enabling them to access permanent housing and other vital opportunities that lead to an independent life,” CVA Director and Program Manager Rick Little stated.  “Bob exhibits an unparalleled enthusiasm, grit, and genuine advocacy spirit – indicative of a NOVA member.”

The CVA/NOVA Pro Bono Advocates Program is one of the largest and most successful partnerships of its kind, with 40 participant law firms nationwide.  NOVA members apply their advocacy skills in a variety of ways, from providing legal assistance with claims before VA and the various courts of appeal to helping a disabled veteran obtain a wheelchair or draft a will.  The end game is for underprivileged veterans to become self-sufficient and then to sustain that independence.

Since August 2009, and at a cost of more than $500,000, Program partners have provided more than 3,000 hours of pro bono legal assistance to indigent veterans and their families.  Access to pro bono legal services has allowed veterans and their families to obtain nearly $1 million in needed financial support.

Mr. Goss is founder of the Law Office of Robert B. Goss, P.C. in Houston.  In 2015, he was named the top lawyer in the field of veterans’ law by Houstonia magazine for the third year in a row.  A disabled veteran himself, Mr. Goss served almost 21 years as an active-duty United States Air Force (USAF) Officer and Command Pilot.  In fact, all of the veterans that Mr. Goss employs at his law office are disabled veterans, providing them with both a legal and personal perspective on VA law.

In his last USAF assignment, Mr. Goss worked for five years at the Headquarters United States Air Force, Doctrine Center, where he supervised writing of the USAF leadership and command doctrine and led other high-level programs.  He also served for three years at the premiere Air Command and Staff College, culminating as an operations officer for 80 international officers from 59 different countries.

Mr. Goss is a graduate of Texas A&M University, where he completed both a Bachelor of Science and Master of Science degree in aerospace engineering.  He received his law degree from the Cumberland School of Law of Samford University and graduated from the University of Houston Law Center with two Masters of Law degrees.

He currently serves on the NOVA Board of Directors and the NOVA ethics, outreach, and seminar committees.  Licensed in Alabama and Texas, Mr. Goss is also a member of several professional associations, including the American Bar Association, the Federal Bar Association, the National Association of Consumer Advocates, and the Military and Veterans Law section of the State Bar of Texas (SBOT).  He was the driving force for the SBOT adding veterans as a section.  Mr. Goss holds numerous military decorations and professional licenses.

Did you know?  Recipients of CVA-NOVA Pro Bono Advocate of the Year Award include Rebecca Wanee (2014), Judge Clarke Barnes (2013), Wade Bosley (2012), and Tara Goffney (2011).

NOVA Members Recognized for Outstanding Pro Bono Work

NOVA recently recognized 15 of its members for their outstanding participation in the CVA/NOVA Pro Bono Advocates Program over the past year.  Representing 12 states and the District of Columbia, these NOVA members exemplify the pro bono spirit by providing a variety of legal services to veterans otherwise unable to afford them.

Those advocates honored for their participation in CVA/NOVA Pro Bono Program during 2015 are:

  • Judge Clarke Barnes (Ill.)
  • Barbara Cook (Ohio)
  • Finkelstein & Partners (N.Y.)
  • Bob Goss (Texas)
  • "Bill” T. Graham (N.Y.)
  • Colin Kemmerly (Ala.)
  • Amy Kretkowski (Iowa)
  • Rick Little (Calif.)
  • Jeany Mark (District of Columbia)
  • Mary Markovich (N.C.)
  • Andrew Rutz (Ind.)
  • Ronald Sykstus (Ala.)
  • Michael Viterna (Mich.)
  • Rebecca Wanee (Miss.)
  • Winona Zimberlin (Conn.)

CVA and NOVA sincerely thank these advocates for their generosity of time and talent on behalf of underprivileged veterans and their families who so desperately need help.

Two Longtime Members Inducted into the NOVA Hall of Honor

Washington, D.C. – The National Organization of Veterans’ Advocates, Inc. (NOVA) recognized the lifetime achievement of two of its longtime members and past presidents – Robert V. Chisholm and Michael R. Viterna – with induction into the NOVA Hall of Honor.  Both attorneys accepted the honor at NOVA’s Spring Conference in Las Vegas this month.

A national, nonprofit educational organization, NOVA provides specialized training for attorneys and accredited agents who assist military veterans with appeals for disability benefits from the Department of Veterans Affairs (VA).  The Hall of Honor commemorates NOVA members who have demonstrated extraordinary service and leadership on behalf of our nation’s disabled veterans.

Mr. Chisholm served as NOVA president from December 1999 to August 2004.  During his presidency and beyond, Mr. Chisholm testified before the House and Senate Veterans Affairs Committees on a variety of legislation affecting veterans.  It was during this testimony that NOVA introduced the idea that veterans should be given a choice of representation at the administrative or VA level.

With his sight set on amending the public law recognizing agents and attorneys (38 U.S.C. § 5904), Mr. Chisholm stepped down as NOVA president to devote his time to that endeavor.  For more than two years, he and other advocates pushed for the repeal of certain limitations on attorney representation of VA claimants, until Congress finally amended the law in December 2006.

On June 20, 2007, The Veterans Benefits, Health Care, and Information Technology Act of 2006 (Section 101 of Public Law 109-461) took effect.  The rule change allowed veterans to hire attorneys to represent them much earlier in the VA’s claims process, after the first denial of benefits by VA.  It also permitted attorneys to charge reasonable fees for their representation.

Mr. Chisholm practices law at Chisholm, Chisholm & Kilpatrick, Ltd. in Providence, R.I.  He has represented hundreds of veterans before the U.S. Court of Appeals for Veterans Claims and VA since 1990.  He has also represented veterans before the Court of Appeals for the Federal Circuit.  Mr. Chisholm received NOVA’s Kenneth M. Carpenter Achievement Award for Excellence in 2008.  He is a frequent featured speaker on veterans’ law at NOVA conferences and elsewhere.

Mr. Viterna served as NOVA president from July 2011 to December 2015.  During this time, in April 2013, NOVA marked its twentieth anniversary by hosting a black-tie gala just outside the nation’s capital.  The first of its kind for NOVA, the event drew hundreds of advocates for disabled veterans, including many dignitaries.  During Mike’s leadership, membership in NOVA grew substantially as the VA’s inability to fulfill our nation’s promise to care for disabled veterans became a national scandal.

Throughout his presidency, Mr. Viterna sought reforms in the VA’s broken claims system, appearing before Congress to address the agency’s most crippling challenges.  These included the transition of veterans’ records from paper to electronic files.  He also fought hard for NOVA members to gain easy access to the VA’s electronic veterans’ files.

Mr. Viterna has practiced veterans’ law for nearly 21 years.  He is the founder and owner of Viterna Law in Belleville, Mich., dedicated to assisting veterans and their families appeal the VA’s denial of benefits.  Viterna Law is a recognized participant in the CVA/NOVA Pro Bono Advocates Program, which provides free legal services to homeless veterans.

Before his practice of veterans’ law, Mr. Viterna spent 33 years as a medic in the U. S. Air Force, retiring with the rank of Chief Master Sergeant.  Just prior to his military retirement, he entered law school and was admitted into practice in 1995.

Did you know?  Previous inductees into the NOVA Hall of Honor are William G. Smith, Keith D. Snyder, and Kenneth M. Carpenter – all of whom are credited with founding the organization in 1993, along with past NOVA Presidents Theodore P. Jarvi and Wade Bosley.

NOVA Recognizes Members Reaching 10- and 15-Year Marks

During the Spring Conference in Las Vegas, NOVA took time to recognize those members who have reached 10- and 15-year milestones in their membership.  The NOVA members in each group received a special commemorative coin to mark the occasion.  Each “challenge coin” features the NOVA logo and year of distinction on one side, and the military service emblems of our armed forces on the other.

NOVA first awarded challenge coins at our 2013 Spring Conference, though the roots of this tradition date back much farther, as told here:

During World War I, American volunteers from all parts of the country filled the newly formed flying squadrons.  Some were wealthy scions attending prestigious colleges, who quit mid-term to join the war.  In one squadron, a wealthy lieutenant ordered solid bronze medallions with the squadron’s emblem for every member. He himself carried his medallion in a small leather pouch around his neck.

Shortly after acquiring the medallions, the pilot's aircraft was severely damaged by ground fire.  Forced to land behind enemy lines, he was immediately captured by a German patrol.  To discourage his escape, the Germans took all of his personal identification, except for the pouch around his neck.  He was then taken to a small French town near the front, where he escaped during a bombardment that night.  He was, however, without personal identification.

The pilot succeeded in avoiding German patrols and reached the front lines.  With great difficulty, he crossed no-man's land.  Eventually, he stumbled onto a French outpost.  Unfortunately, the French in this sector had been plagued by saboteurs, who sometimes masqueraded as civilians.  Not recognizing the young pilot's American accent, the French thought him a saboteur and were ready to execute him.  Just in time, he remembered his leather pouch containing the medallion, which he showed to his would-be executioners.  Recognizing the squadron insignia, his French captors delayed long enough for him to confirm his identity.  Instead of shooting him, they gave him a bottle of wine!

Back at his squadron, all members agreed to carry their medallion or coin at all times.  A new tradition was born.  This was accomplished through a challenge:  A challenger would ask to see the coin.  If the challenged could not produce his coin, he was required to buy a drink of choice for the member who challenged him.  If the challenged member produced his coin, the challenging member was required to pay for the drink. This tradition continued throughout the war and for many years after with the surviving squadron members.

Those NOVA members accepting the “Challenge of the Coin” this year are:


10-Year Award

Maurice AbarrMaurice L. Abarr - Lawyer, Inc., Santa Ana, CA

Katie AmblerMoellring & Ambler, LLC, Hannibal, MO

Christopher BoudiBosley & Bratch, Marion, IN

Ralph BratchBosley & Bratch, Clearwater, FL

Margaret CostelloUniversity of Detroit Mercy School of Law Veterans Law Clinic, Detroit, MI

Judy DoneganChisholm, Chisholm & Kilpatrick, Providence, RI

Pamela DunmoreN. Albert Bacharach, Jr. P.A., Gainesville, FL

Michael EisenbergLaw Office of Michael D.J. Eisenberg, Attorney and Counselor at Law, Washington, DC

Niki FisherFisher Law Office, Des Moines, IA

Fay FishmanPeterson & Fishman, PLLP, Minneapolis, MN

Christopher GodiosShifrin, Newman, Smith, Inc., Akron, OH

Paul GoodsonThe Law Offices of Paul M. Goodson, PC, Charlotte, NC

Matthew HillHill & Ponton, DeLand, FL

Cleo HoganCleo G. Hogan Attorney at Law, Clarksville, TN

Michael KelleyLaw Offices of Michael James Kelley, Boston, MA

Ken LaVanLaVan & Neidenberg, Ft. Lauderdale, FL

Dax LonettoDax J. Lonetto, Sr., PLLC, Tampa, FL

Brian MarloweMarlowe & Marlowe, LLC, Hammond, IN

Greg MaxonHill & Ponton, DeLand, FL

Pi-Yi MayoLaw Office of Pi-Yi Mayo, Baytown, TX

Christa McGillMcGill & Noble, LLP, Durham, NC

Teresa MeagherLaw Office of Teresa M. Meagher, Overland Park, KS

Michael MiskowiecAttorney at Law, Charleston, WV

Marcia MoellringMoellring & Ambler, LLC, Hannibal, MO

Virginia NobleMcGill & Noble, LLP, Durham, NC

Zachary StolzChisholm, Chisholm & Kilpatrick, Providence, RI

Clarence Thornton Law Office of Dr. C.H. Thornton, Baton Rouge, LA

John TuckerTucker & Ludin, P.A., St. Petersburg, FL

Michael VaronLaw Office of Michael Lawrence Varon, PLLC, White Plains, NY

Agnes WladykaAgnes S. Wladyka, LLC, Mountainside, NJ

 

15-Year Award

Clarke BarnesJudge Clarke Barnes, Retired - Attorney at Law, Veterans Law Advocacy, Geneseo, IL

Mark BeanElie Halpern & Associates, PLLC, Olympia, WA

Thomas HigginsAttorney at Law, San Jose, CA

Brian HillHill & Ponton , DeLand, FL

Colin KemmerlyGardberg & Kemmerly, P.C., Mobile, AL

Carol PontonHill & Ponton, DeLand, FL

Winona ZimberlinLaw Office of Winona W. Zimberlin, Hartford, CT
Please join us in congratulating these longtime members!  We take pride in the positive difference that each and every NOVA member makes in the lives of so many veterans and their families.  Our nation’s veterans deserve the very best representation and that’s what NOVA members are all about!

Join Us on May 18 for NOVA’s Webinar – Build For Success: Three Tools to Improve Cash-Flow in Your VA Practice!

NOVA will hold its next webinar – Build For Success:  Three Tools to Improve Cash-Flow in Your VA Practice – 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.

To register for this webinar now, click HERE.

Brief Notices

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.

 

Four Retired Judges Recalled by CAVC in February 2016

Effective February 1, 2016, recall-eligible retired Judges William P. Greene, Jr. and William A. Moorman are recalled from retired status in accordance with 38 U.S.C. § 7257(b)(1).  Judges Greene and Moorman shall have and exercise all of the judicial powers and duties of the office of a Judge in active service and shall otherwise perform substantial service for the Court as requested by the Chief Judge.

Effective February 9, 2016, Judge Kenneth B. Kramer and Donald L. Ivers are recalled from retired status in accordance with 38 U.S.C. § 7257(b)(1).  When in service, Judges Kramer and Ivers shall have and exercise all of the judicial powers and duties of the office of a Judge in active service and shall otherwise perform substantial service for the Court in this calendar year as requested by the Chief Judge.

To view 2016 Miscellaneous Orders on the CAVC's website, click HERE.

 

CAVC Proposes to Revise Rules of Practice and Procedure
Pursuant to the authority of 38 U.S.C. §§ 7263(b) and 7264(a) and consistent with 28 U.S.C. § 2071(b), the U.S. Court of Appeals for Veterans Claims has determined the need to revise its Rules of Practice and Procedure (Rules) to provide broader use of email for submission of documents by self-represented appellants.  Therefore, the Court proposes to revise Rules 1, 25, 32, and 45 and related E-Rules 1, 2, 3, 5, 6, 10, 11, and 13.  In reaching this determination, the Court has considered the views of its Rules Advisory Committee.

Accordingly, it is ORDERED that the attached proposed revisions to the Court's Rules are hereby published for public comment for a period of 30 days.  Comments must be submitted by April 7, 2016, to the Clerk of the Court at comments@uscourts.cavc.gov or 625 Indiana Avenue, NW, Suite 900, Washington, DC 20004-2950.  To view 2016 Miscellaneous Orders on the CAVC's website, click HERE.

 

Register to Attend the CAVC Judicial ConferenceApril 14-15
NOVA members are invited to register to attend the Court's 13th Judicial Conference, April 14-15, 2016, at the Knight Conference Center at the Newseum, 555 Pennsylvania Avenue, NW, Washington, D.C.

The conference will focus on the changing landscape of veterans’ law.  Highlights will include a discussion of extraschedular evaluations, disability benefits questionnaires, and the challenges of TBI claims.  The April 14 luncheon speaker will be U.S. Supreme Court Justice Sonia Sotomayor.

Registration information and the conference program are posted on the Court's website.

 

Visit the “NOVA Store” for Webinars, Conference Videos

NOVA just created a new “one-stop shopping” store on its website, where you can purchase past webinars and conference videos all in one place.  Members will appreciate the convenience of viewing everything NOVA has for sale all in one place.

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:

NOVA Board of Directors meeting minutes from December 2015:

https://vetadvocates.org/download/2015-12-01-nova-bod-meeting-minutes/

Statement from VA Secretary McDonald on Appeals Process Reform:

https://vetadvocates.org/download/2016-01-27-statement-from-va-secretary-robert-mcdonald-on-the-need-to-reform-the-veterans-appeals-process/

VA Fact Sheet on Agent Orange and Presumptions of Service Connection:

https://vetadvocates.org/download/va-fact-sheet-agent-orange-and-presumptions-of-service-connection-inland-waterways-and-blue-water-navy-veterans/

NOVA Memo on TDIU:

https://vetadvocates.org/download/2016-01-tdiu-nova-memo/

NOVA Letter to VA Secretary McDonald:

https://vetadvocates.org/download/2016-02-11-nova-letter-to-va-secretary-mcdonald/

 

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

 

Special Thanks to Our Spring Conference Exhibitors

NOVA would like to thank these exhibitors for supporting our 2016 Spring Conference in Las Vegas:

  • United States Court of Appeals for Veterans Claims (CAVC) Bar Association – Created to improve and facilitate the administration of justice in the CAVC, the CAVC Bar was on hand to showcase the resources and advantages of membership. Conference attendees stopped by to learn about upcoming events and picked up membership forms, newsletters, and more.
  • Clifford Vocational Services, Inc. – In 1997, Patrick Clifford founded Clifford Vocational Services and has functioned in private practice as a Vocational Evaluator working with catastrophic injury, brain injury and orthopedic injury. His company specializes in providing vocational testing and vocational evaluation to individuals who have suffered physical or cognitive injuries and limitations.
  • Critical Analysis Consulting, LLC – This independent nurse consultant firm assists attorneys across the country with medical record analysis, merit screens, expert witness location, forensic/criminal reviews, nursing home litigation, nurse life care planning, and veteran's medical claims. They maintain a nationwide database of physician experts and also have a Nurse Practitioner on staff to provide Nexus opinions for veteran clients.
  • Prevail Case Management Software – Prevail is an all-in-one case management system that is designed for most law types, but is highly specialized for Veteran's cases. Whether your practice is diverse, or you handle only VA cases, you can manage every aspect of each case with Prevail. Contacts, critical deadlines, medical information, correspondence, email and scanning, and more can be tracked in the Prevail system.

 

 

 

Past Newsletters

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