Veteran law cheat sheet Flashcards
(108 cards)
1
Q
What is a “Veteran?”
A
- Served
- Active duty
- Discharged
- Not DH
2
Q
This finding may overcome statutory and reg. bars if _______ a the time of discharge.
A
Insane
3
Q
Can you get healthcare for insanity?
A
Yes if insane at time of discharge and it matches VA definition.
4
Q
T/F) Veterans are not precluded from benefits for bad discharge if there was multiple enlistments and some were good.
A
True
5
Q
Can guard / reserve get benefits?
A
Only if activated for FED service.
6
Q
T/F) MST can overcome disqualifying discharge and veteran can get free healthcare related to it.
A
True
7
Q
Length of service?
A
9.8.1980 = even one day before is enough. After this date, 24 months active duty.
8
Q
What is wilful misconduct?
A
Drug and alcohol abuse
9
Q
Statutory bars?
A
- Hacksaw ridge
- AWOL 180
- Deserter
- Resigned for good of service
- Discharged as alien in time of hostility
10
Q
Reg bars?
A
- MT
- Mutiny
- Spying
- Wilful misconduct
- homo shit
11
Q
Effective date?
A
Date 526EZ received or date entitlement arose, whichever is later.
12
Q
Forms?
1. 526
2. 95
3. 66
4. 96
5. 10182
A
- Initial
- Supp
- Inent to file
- HLR
- BVA
13
Q
Servicemen readjustment act of 1944
A
GI Bill
14
Q
VA AMA effective date?
A
2.19.2019
15
Q
Mission act?
A
2018 community care
16
Q
Pact?
A
2022, largest expansion of presumed medical conditions.
17
Q
Chevron gives deference to who ?
A
Agency. Overturned by looper.
18
Q
When does VA auto conduct character of service determnation?
A
When discharge was not fully honorable.
19
Q
What benefits for discharge other than honorable?
A
Only for healthcare related to disabilities incurred from service. [no education]
20
Q
Caluza elements? [Caluza v. Brown]
A
- Current disability “competent evidence”
- In service event “at least as likely as not”
- Medical nexus between the two
21
Q
(3) Medical nexus factors?
A
- Direct
- Secondary
- Aggravated
- Presumed
- VA injury
22
Q
Va may not assume disability existed prior to service. VA can only rebut this presumption of ___________ when there is “clear and unmistakable” evidence against. [Very high bar for VA]
A
Presumption of soundness
23
Q
How can VA rebut the “presumption of soundness?”
A
Only with “clear and unmistakable” evidence against.
24
Q
Do you still need Caluza elements for PTSD claims?
A
Yes
25
PTSD code?
1154(b)
26
What is different about normal 526ez claims and claims for PTSD regarding (2) [In service event] of caluza elements?
Lower threshold for PTSD claims per Pentecoast v. Principi. Although, it must be "consistent with hardships of service."
27
Element (2) of caluza for PTSD claims must be...
"Consistent with hardships of service."
28
1. Prerequisite for 1154 to apply?
2. How to still file PTSD for non-combat veteran client?
1. Veteran must have been engaged in actual combat with enemy.
2. Fear category.
29
Veteran statement in support of PTSD claim...
A)
B)
C)
A) Satisfactory & credible
B) Consistent w/ hardships of service
C) No clear & convincing evidence against
30
BVA form?
10182
31
Conference options with BVA?
A)
B)
C)
A) DC
B) Remote @ RO office
C) Remote @ your home
32
CFR and USC numbers?
38
33
3 lanes after RO decision?
1. Supplemental (95)
2. HLR (96)
3. BVA NOD (10182)
34
If the RO denies client claim. Why would you want to pursue HLR ?
De novo review. No new evidence needed. Informal conference w/ reviewer at higher level.
35
What are your claim flow options when you get denial notice of client from regional RO?
1) HLR
2) NOD BVA
3) Supp claim
36
For supplemental claim, what is needed?
New and relevant evidence. For your client, go get IME if not done so already.
37
Which claim establishes the effective date for your client.
526EZ. However, if you need more time to file that then use the 66 [intent to file] form.
38
When regional RO is reviewing your client's packet, when does the VAs duty to assist end?
When the notice of decision is mailed.
39
Duty to assist means what?
VA must be clear on what they need and must retrieve medical evidence.
40
[Active duty req.]
When can prior ROTC service qualify towards overall service later on?
If more than 4 weeks with a branch.
41
This landmark case demonstrates that if activated for state services, no benefits.
Allen v. Nicholson
42
6 possible classifications of service? AND, which of them qualify as Veteran?
1. Honorable [Full benefits]
2. Under honorable, general [no education]
3. Other than honorable [no education]
4. bad conduct [no benefits]
5. dishonorable [no benefits]
6. administrative [no benefits]
Any discharge above dishonorable can qualify as a "veteran."
43
This type of narrative reason for discharge is some "egregious ass shit." It is usually stuff like "cocaine and hookers." BIG regulatory [CFR] bar to benefits.
Moral turpitude.
44
Does the "duty to assist" require the VA to pull private medical records.
No, so we need to furnish them.
45
The VA _________ of ____________ generally assumes a veteran was in good health when they entered service, except for conditions noted on their entrance exam. This presumption benefits the veteran, and the VA bears the burden of proving that a condition existed before service and was not aggravated by military service.
Presumption of soundness
46
How can VA rebut the presumption of soundness? [Very high bar for VA]
By showing "clear and unmistakable" evidence injury existed before service.
47
T/F) Secondary conditions are not beholden to any time frame.
True, they may arise anytime.
48
When the RO sends notice of denial, the duty to assist ends and you have one year to respond with one of the three lane options or....
If no response in one year, the claim is final and closed.
49
What is the "effective" date, generally speaking?
1. 526EZ filed
2. Date entitlement arose
**Whichever is later**
50
Actual claim flow after you file EZ?
1. 526 EZ filed
2. RO office review
3. Substantially complete?
4. If yes, goes to VBMS system
51
The scheduled C&P exam evaluates the veteran under what standard?
(2) "At least as likely as not" using the CFR part 4 and DBQs.
52
Which class of disabilities will NEVER have their ratings reduced?
0%, 55 yrs or older, and static ratings.
53
If not-static rating, when are re-evaluations conducted?
Typically 2-5 years. However, after five years, it may not be reduced by the VA.
54
What's the 20 year rule?
Rating can now never be reduced except in cases of legitimate fraud.
55
When do spouses automatically get the DIC benefits?
Veteran was 100% p&t for ten years total.
56
[Scenario] Veteran rating varies between 30% and 100% for 20 years. What level can VA not reduce below?
30%
57
This type of month compensation is allocated in addition to whatever the vet already receives. It is typically awarded to those reporting 1) loss of organ(s), (2) wheelchair bound, (3) loss of limbs, (4) housebound, etc.
Special Monthly Compensation "SMC"
58
[Education]
This program will pay half of everything [matching the university] for all tuition over the approved state tuition mark.
Yellow Ribbon
59
T/F) Veterans may not get disability based on tobacco diseases BUT their spouse can get DIC benefits from it if they show addiction in response to a primary condition. [Ex: Tobacco addiction b/c of PTSD.]
True!
60
How to help a spouse whom's veteran has committed suicide?
Must show suicide result of disability that "aided or lent" to his suicide. [IE: Direct disability > Secondary > Suicide]
61
This SMC rating "requires special daily assistance" such as spouse caregiver or professional home care. This level is not housebound like SMC (S). This level simply means the veteran may need "aid and attendance" with daily activities.
SMC R1 and R2
62
SMC rating for loss of specific body parts?
SMC (K)
63
T/F) The VA is responsible for determining if a veteran qualifies for SMC-K and will automatically apply it to their rate of compensation if they meet the criteria.
True
64
SMC rating for housebound veterans?
SMC (S)
65
_______(__), or Special Monthly Compensation Level __, is a tax-free benefit provided by the Department of Veterans Affairs (VA) to veterans with service-connected disabilities that require them to be primarily confined to their home.
SMC (S)
66
_______ (__) is a type of VA Special Monthly Compensation awarded to veterans who have a service-connected disability resulting in the loss or loss of use of a body part or a creative organ. This compensation is added to their standard VA disability payment and is tax-free.
SMC (K)
67
Potential client walks in the door. How to approach?
1. Veteran?
2. Discharge status / Character of service?
3. Length of service?
4. Reg or Statutory bars?
5. What's the issue? Apply Caluza elements.
6. 526 pre-fill
7. Schedule IME
8. Complete 526EZ
68
Potential client walks in the door with denied claim. How to approach?
1. Review denied 526EZ
2. Was there any "favorable findings?" = Medical nexus is there.
3. Reschedule IME
4. Review CFR part 4 and DBQs
5. Resubmit 95 supplemental
69
"Favorable finding" on a denied claim letter means what?
Your almost there. You at least have the medical nexus. Go back and get an IME.
70
Minimum rating to use Vocrehab / VRE?
20%
71
Chapter 31?
Chapter 33?
31 = VRE
33 = Post 9/11
72
Chapter 33 eligible if serving after what date? Minimum service?
9/10/2001. At least 90 days on active duty.
73
A VA ________ & _______ error claim is a way to appeal a prior decision made by the VA if it is believed that the VA made an error that was "so obvious and clear" that it should have been caught at the time of the original decision
Clear and unmistakable error "CUE"
74
How to prove CUE?
1. Error
2. Clear and unmistakable
3. Affected outcome
**Must be based on record and law that existed when adjudicated**
75
CUE errors are based on law that existed when?
When originally adjudicated.
76
Form for filing new claim or claim decided and one year passed?
526EZ
77
Form for filing supp. claim inside of the one year mark? What is needed? [You disagree and provide new evidence]
20-0995
1. New and relevant evidence
78
Form if you need more time to file the 526?
66, preserves effective date.
79
HLR form? New evidence needed? Benefit?
96. No. Informal conference with reviewer.
80
Timeline wise, what's great about HLR and the 1yr deadline to respond to RO notice letter?
1. HLR pauses the clock
2. After HLR, you get new one year timeline.
**You should always do this before filing the supplemental as it helps you build your new supplemental claim**
81
Can HLR review new evidence?
no
82
2 questions when client walks in with RO notice of denial?
1. Clear error of fact or law? Request HLR
2. Do we have N&R evidence? Supplemental
83
How do you, as a licensed VA attorney, get paid?
1. HLR [if lead to retro pay]
2. Supp [if lead to retro pay]
3. BVA [if lead to retro pay]
84
Servicemen Readjustment Act of 1944 also known as what?
GI Bill
85
When was VA reorganized into VA cabinet position?
88' under POTUS Regan
86
AMA created when?
Entered into force when?
2017
2.19.2019
87
The 4 criteria for Veteran provided by what code?
38USC101(2)
88
Why is a medical opinion relying on VAs definition of "insane" critical?
Modern psychiatry no longer deems persons "insane."
89
VA provides Veterans reporting MST with what?
Free care related to it
90
T/F) Involuntary RIF is ineligible for any benefits at all.
True!
91
The single-most common reason for denial of SC?
Medical nexus
92
Under 1154(b) for PTSD claims...Vets receive favorable treatment for "incurred events" so long as what?
"Consistent with the conditions or hardships of such service."
93
Prerequisite for 1154(b) to apply?
Veteran engaged in actual combat with the enemy
94
What's notable about the fear category of PTSD as related to VA psych diagnosis?
Requirement for corroborating evidence is eliminated
95
VA will always use what for the rating schedule?
38 CFR part 4
96
Is there any limit on # of times you can submit a supplemental claim for client?
No but you must have N&R evidence each time.
97
If you already filed the supplemental claim, can we still change avenue of disagreement?
Yup
98
3 types of BVA review?
1. Direct[no new evidence]
2. Evidence review[N&R evidence]
3. Hearing
a. DC
b. RO remote
c. your home remote
99
For BVA review, do you have to submit your brief immediately?
No. May submit within 90 days of appeal.
100
BVA direct review?
No new evidence. Review of fact and law.
101
BVA evidence review?
May submit additional evidence in support of appeal.
102
When submitting favorable IME, remind VA this is "sufficient medical evidence" consistent with what statute?
38USC5103(d)
103
IME Acceptable clinical evidence initiative pub?
115-130
104
When will VA place less weight on an IME?
If they fail to state they "reviewed the veteran's claims file or at least the veteran's STRs."
105
VA accredation form?
21(a)
106
VA attorneys and PR rules?
38USC59 and CFR part 14
107
When is spouse eligible for DIC?
1. Died in line of duty
2. Died from SC
3. She married / cohabitated
4. Did not remarry
5. 10 year rule also = 10 year disabled then die at 100%
108
T/F) If Veteran rated at 100% for ten years = spouse auto gets DIC
True!
