Veteran Law [Final] Flashcards
(168 cards)
1
Q
Gi bill also known as what?
A
Servicemen readjustment act of 1944
2
Q
VA becomes cabinet position when?
A
1988 - Reagan
3
Q
AMA in 2017 did what?
Valid when?
A
- Created electronic system
- Restructured claims / appeals avenues “lanes”
Valid 2.19.2019
4
Q
AMA valid on what date?
A
2.19.2019
5
Q
What year was the VA mission act?
A
2018
6
Q
Years?
AMA =
Mission =
Pact =
A
2017
2018
2022
7
Q
Mission Act 2018 did what?
A
- Authorized ER visits without prior approval [community care]
8
Q
Pact act 2022 did what?
A
Largest expansion of presumed medical conditions for Vets
9
Q
How are admin. agencies created?
A
Acts of congress
10
Q
_______ provides for the roles / powers of all agencies and procedures by which they must abide.
A
APA
11
Q
_____ standard: Courts apply extremely deferential standard of review… whereas courts defer to agency interpretations of such statutes unless unreasonable.
A
Chevron [overruled by Looper]
12
Q
After what date are claims going through the AMA system?
A
2.19.2019
13
Q
4 criteria for “Veteran.”
A
- Served
- Active duty
- Discharged
- Not DH
14
Q
Why is a medical opinion relying on VAs definition of insanity imperative?
A
Because modern psychiatry no longer deems persons “insane.”
15
Q
T/F) Insanity can overcome most obstacles to benefits.
A
True
16
Q
- Active duty service requirement for NG and reserves?
- For AD?
A
- Full period for which activated. Federal only. [Allen v. Nicholson]
- 24 months
17
Q
T/F) NOAA, Public Health service, and Cadets at military academy may satisfy “active” duty requirement.
A
True
18
Q
When does “active duty” requirement qualify under training for Reserves and Guard?
A
When the training is for FEDERAL purposes.
19
Q
[Discharge]
VA considers a person a veteran if discharged under what conditions?
A
Under conditions other than dishonorable.
20
Q
When will VA almost always find that discharge was DH?
A
- Was DH [General court marital]
- Administrative discharge
21
Q
Statutory bars to VA benefits?
A
- Hacksaw ridge
- AWOL [180 days or more]
- Deserter
- Dismissal/resignation for “good of service”
- Alien
22
Q
[Statutory bar]
Exception to 180 day AWOL bar?
A
“Compelling circumstances to warrant the prolonged absence.”
23
Q
How many days minimum to = statutory bar for AWOL?
A
180 days
24
Q
Regulatory bars?
A
- Mutiny / Spying
- Moral turpitude
- Willful misconduct
- aggravated homo acts
- Accepting undesirable discharge to avoid general court martial
25
When does the VA do its own character of service determination?
When less than Honorable
26
Exception to bar on VA benefits due to unfavorable discharge?
MST - get free care for all conditions related to it.
27
Length of service for vets serving before 9.8.1980?
Even 1 day will qualify.
28
One day of active duty qualifies if serving before what date?
9.8.1980
29
Serving after 9.8.1980 length of service requirement?
24 months or full period for which activated to FED duty.
30
T/F) RIF discharge is ineligible for some VA benefits.
False. Ineligible for ALL VA benefits.
31
1. ___ ____ involves the intentional wrongdoing with knowledge of or reckless disregard of the probable consequences.
2. 2 biggest examples?
1. Willful misconduct, a regulatory bar.
2. Alchohol and drug abuse
32
Initial claim submitted on what form?
526
33
Caluza elements?
1. CD "competent evidence"
2. In service event "at least likely as not"
3. Medical nexus
34
Can pain untethered to medical diagnosis constitute a disability?
Yes if functional loss. [Sauners v. Wilkie]
35
Competent evidence examples?
1. Medical diagnosis
2. Medical journal
36
(2) In service event = what is big requirement?
"At least as likely as not" there was in-service incurrence or aggravation of disease.
37
How to establish in-service event?
Service treatment records, buddy statements, family statements, newspapers, etc.
38
Single most common reason for denial of SC?
Medical nexus
39
Five ways to establish medical nexus?
1. Direct
2. Aggravated
3. Presumed
4. Secondary
5. VA injury
40
Does disability have to be a specific medical diagnosis in order for SC to be granted?
No. "Pain" can be sufficient if resulting in a functional loss.
41
Key factor for "In-Service event?"
At least as likely as not...
42
1154: Benefit of doubt goes to Veteran so long as...
.... so long as consistent with the conditions or hardships of such service...
43
Prerequisite for 1154 to apply?
Engaged in actual combat with the enemy
44
How to corroborate Veterans statement about combat service?
1. DD214
2. Military decorations, awards, etc.
45
Does the "evidence of stressor" requirement for combat Vets require evidence of actual combat?
No. There is a fear of hostile military or terrorist category. For this, need not be in designated combat zone.
46
T/F) In the fear category, if VA psych diagnosed Vet with PTSD, req. for corroborating evidence is eliminated.
True
47
How many priority groups?
8
48
PG 1
50 % or more
MOH
49
PG 2
30-40%
50
PG 3
10-20%
PH
POW
51
Generally, when is the effective date for benefits?
Date VA received 526 or date entitlement arose, whichever is later.
52
VA Form 66 preserves date that form filed as effective date so long as....
Vet files 1 year within that date.
53
All C&P examiners use what?
DBQs
54
Can Vets opt into AMA?
Yes
55
____ claim: First time claim or request for increase in rating.
Initial claim
56
_____ claims must be supported by new and relevant evidence.
No time limit on # times this can be applied for.
Supp. claim
57
Higher level review must be requested within....
1 year of decision.
58
Supplemental must be filed within 1 year of decision to do what specifically?
Preserve the initial effective date. You can also file a supplemental after this period but you have lost the effective date.
59
BVA [NOD] form?
10182
60
3 avenues for BVA review?
1. Direct
2. Evidence review
3. Hearing
61
What form is the BVA appeal?
10182 Board Appeal [NOD]
62
3 BVA review types?
1. Direct
2. Evidence review
3. Hearing
a. central office
b. videoconference
c. virtual telehearing
63
Define BVA direct review
1. Direct review of file. No new evidence permitted. [de novo]
2. Counsel may submit brief within 90 days of hearing
64
Define BVA evidence submission review.
You submit additional evidence in support of appeal form 10182 OR within 90 days of board receipt of the form.
65
T/F) If you have submitted a supp. claim or requested higher level review, you may NOT switch to new review option.
False.
1. Can switch to supp. claim at any time.
2. Can switch to HLR or Bd appeal within 1 year from date of decision letter.
66
When can you switch from a Board appeal?
If both are true:
1. Havent had hearing
2. Havent submitted new evidence
67
T/F) You can switch to HLR if your within 6 months of decision letter.
False. 1 year.
68
T/F) You cannot switch to supp. claim unless within 1 year of decision letter.
False. Can switch anytime but switching within 1 year preserves the effective date.
69
Initial claim =
Supp claim =
Intent to file =
HLR =
BVA =
Initial = 526
Supp = 95
I2F = 66
HLR = 96
BVA = 10182
70
____ and ____ error: Exception to the general rule on effective dates. If successful, the effective date assigned will be the date that WOULD have been assigned if previous final decision was granted.
Clear and Unmistakable error
71
If CUE error granted, Veteran gets the current compensation rate going back to new effective date.
False, its a staged compensation scale.
72
How to establish CUE claim?
1.
2.
3.
1. New facts or law was incorrectly applied
2. error occurred based on record/law at time
3. had error not occurred, outcome be diff.
73
"Very specific and rare kind of error. It is the kind of error that when called to attention of reviewer compels conclusion that result would have been manifestly different if not for error."
CUE
74
CUE claim must be based on record and law that existed when? Case?
When decision allegedly containing CUE was made. [Lamb v. Peake]
75
Is a medical diagnosis relied upon by VA in denial that was incorrect in light of new medical diagnosis CUE error ?
No
76
Is failure to fulfill duty to assist CUE?
No
77
T/F) It may be CUE for the VA to fail to give a sympathetic reading to Veteran's filings by determining all potential claims raised by evidence, applying all relevant laws and regs.
True. Moody v. Principi
78
T/F) A later judicial interpretation of the plain meaning of a statute can qualify as CUE. [Test Q]
True! [Rivers v. Roadway express]
79
Regarding revision of prior RO decision, the claimant must raise the issue of CUE to the VA with _________ to when / how it occurred. [Test Q]
Specificity! [Bowen v. Shinseki]
80
T/F) If claimant fails to meet the pleading requirements for CUE revision [specificity] then the request is dismissed w/o prejudice.
True
81
Claimants must plead CUE motions where?
With the VA authority that gave final denial of the claim. Be that either the RO or BVA.
82
Are BVA decisions subject to revision via CUE motions? If yes, any times they cannot?
Yes! BUT, if already reviewed by CAVC / FED circuit then no.
83
When you submit the 526, it must be "______ _______" to avoid rejection by RO.
Substantially complete
84
What statutory code for PTSD claims?
38USC1154(b)
85
What case showed that "every benefit of doubt goes to Veteran if consistent with hardships of service."
Jensen v. Brown
86
Jensen v. Brown shows us what?
Every benefit of doubt goes to Veteran if consistent with hardships of service. [For 1154(b) claims]
87
PTSD can develop from actual threatened death or injury or.....
..... or threat of physical violence / death to the Veteran or others.
88
How to get around?
C&P examiner stated that injury was due to civilian accident not from line of duty.
Argue that this was an "aggravation" of a pre-existing condition from service.
89
Where is the starting point for all disability claims?
RO - Regional Office
90
AMA applies to claims filed or appealed after what date? Whats it stand for?
2.19.2019
[Appeals] Improvement & [Modernization] [Act]
91
T/F) Claim for an increase in disability rating is also an [initial] claim.
True
92
Supplemental claims must be supported by _____ & _____ evidence.
New & relevant evidence
93
T/F) Claim for previously denied claim is still an initial claim.
True
94
Advantage to being an "initial claim?"
1. VA must decide on merits
2. Full duty to assist
3. VA cannot be influenced by past denials
95
What is "new and relevant" evidence?
Evidence that which was not previously part of the actual record before VA adjudicators.
96
______ evidence = that which tends to prove or disprove a matter at issue.
Relevant
97
T/F) Generally, the VA takes a [narrow] interpretation of new and relevant evidence, not in favor of the Veteran.
False. Broad, and it is in favor of the Veteran.
98
What's an advantage(s) to supplemental claims?
1. No limit on #
2. No time limit
99
T/F) A Vietnam Vet can file supplemental claims today for issues denied in 1968.
True. This reflects the powerful nature of supp. claims. No limit to the # of submissions and no time restraint. [other than to preserve effective date]
100
T/F) To file supplemental claims, you use 95 form.
False. This was true until 2022 -- now required to use 525 form for supplemental claims just like initial claims.
101
________ compensation [k] is a tax-free benefit Veterans can get on top of their disability compensation.
Special monthly compensation [k] [used to help Veterans who lost use of extremities / organs during active duty]
102
Special monthly compensation [K] is for who?
Veterans who lost use of extremities or organs in service.
103
SMC-K paperwork is filed at local VA office on what form?
21-2680
104
Eligibility for SMC K?
1. Loss of extremity or organ
2. or Loss 25% or more tissue from single breast or both
3. Unable to speak
105
T/F) ED claims make Veterans eligible for SMC-K.
True - this is loss of creative organ.
106
SMS-S is for who?
House bound Veterans
107
SMC R1 and R2 is for who?
[Aid & Attendance] for Veterans who require special assistance b/c of their disabilities.
108
General SMC eligibility?
1. 100% or
2. Loss of organ / extremity or
3. Housebound
109
______ ratings: VA diagnostic code may not capture "all" disabilities unique to a Veteran. [Must make specific argument for this]
Extraschedular ratings. Looks at:
1. Symptomology compared to diagnostic code
2. Frequent periods of unemployment
3. Frequent hospital visits
110
Requirements for extraschedular rating? [Thun steps]
1.
2.
3.
1. Symptomlogy compared to VA diagnostic codes
2. Frequent Interruptions to employment
3. Frequent hospitilizations
111
T/F) Neither the Board nor the RO is permitted to assign extraschedular ratings in the first instance.
True, must be referred to director of compensation services.
112
Whats an important factor for #1 in the THUN steps for extrascheudular ratings?
The schedular must evaluate the claimant's syptomology and severity of it.
113
_____ ratings: Not in the rating schedule. "When unlisted condition, it should be rated under closely related disease or injury."
Analogous ratings
114
Analogous rating factors
1.
2.
3.
1. Functions affected by conditions
2. Location of conditions
3. Whether symptoms similar
115
_____ factors: When compensable disability exists b/c injury to both arms, both legs, etc... those ratings combined as usual + extra 10%.
Bilateral factors
116
T/F) The RO cannot force the claimant to talk to them without speaking to their attorney first.
True
117
When taking on a client, what should you always file with the VA, right out the gate?
Intent to file form -- to preserve the earliest possible effective date.
118
T/F) Unless the VA specifically requested the evidence, you are NOT obligated to submit evidence to VA that would damage your client's claim.
True!! Great advocacy tip.
119
When you first meet with client, it is important to make clear what?
The meeting is an "initial consultation" NOT an A/C relationship.
120
Initial claimant interview checklist
1. Statutory bars?
2. Regulatory bars?
3. Length of service
4. DD214 on hand?
5. STRs?
6. What do you expect?
121
VA attorney's and PR statute and CFR?
1. 38USC 59
2. CFR part 14
122
VA attorney bound by PR rules through what CFR?
Part 14
123
VA attorney bound by PR rules through what US code?
38USC59
124
VA Attorney fees?
1. Reasonable fees for appeals
2. Typically 20% which is presumed reasonable
125
VA ____ _______ratings are awarded when the standard rating schedule doesn't accurately reflect the severity of a veteran's condition, requiring a higher rating than the schedular rating would provide.
______________ratings, on the other hand, are used when a veteran's condition isn't listed in the VA's Schedule for Rating Disabilities and is rated based on a similar condition that is.
1. Extraschedular ratings
2. Analogous ratings
126
Instead of relying on VA doctors, what should you do for client?
Schedule IME [Independent medical exam]
127
Is the VA obligated to consider medical opinions by experts other than medical doctors? Such as NPs and PAs?
Yes. Cox v. Nicholson.
128
When submitting a favorable IME to VA, you should also do what?
Submit legal argument stating that VA should not schedule Veteran for examination b/c there is now sufficient medical evidence to decide the claim. [38USC5103(d)]
129
When arguing for your IME and advising VA not to schedule another exam.... If the VA does so anyways?
Remind VA this is acting in "adversarial fashion." PUB 115-130
130
What PUB to remind VA not to act in "adversarial fashion" regarding IMEs?
PUB 115-130
131
When will the VA place less weight on an IME?
If the expert does NOT expressly state that they reviewed veteran's claims and STRs.
132
T/F) The CAVC has held that the VA has no obligation to provide a veteran's private physician a copy of VA claim's file.
True. However, VA must provide if physician puts VA on notice that review of claims file is necessary to render thorough opinion.
133
Best way to combat negative VA medical opinion?
1.
2.
1. Get an IME that points out why said opinion is wrong conclusion.
2. Request credentials of the VA examiner [they must provide]
134
Three types of board appeal options via 10182 form?
1. Direct [no new evidence, no hearings, etc.]
2. Evidence submission reviewed by VLJ [submit new evidence for review by VLJ]
3. Hearing with VLJ [DC, remote at local RO, or remote from home w/ new evidence] ---- can provide the evidence after hearing so long as within 90 days of it.
135
T/F) You can submit your new evidence for the VLJ hearing [10182] with the BVA after the hearing.
True, so long as within 90 days.
136
3 types of hearings with the BVA VLJ?
1. DC
2. Remote via local RO
3. Remote via home
137
Definition for Veteran?
1. Served
2. Active
3. Discharged
4. Not DH
138
This landmark USCAVC case, who took the appeal in 2009 above BVA, shows that insanity can overcome any statutory or regulatory bar to VA benefits.
Gardner v. Shinseki
139
In order to obtain eligibility for VA benefits under "insanity," must have medical opinion that Vet was insane when?
At time of incident
140
T/F) The military uses much narrower definition of insane than the VA.
True. Which means a "sane" finding in military will not later preclude "insane" finding by VA, which trumps.
141
This case showed that members of the guard are only eligible for VA benefits stemming from FED service.
Allen v. Nicholson
142
DOD has 6 classifications of discharge:
1. Honorable
2. Under honorable [general]
3. other than honorable
4. bad conduct
5. dishonorable
6. administrative
143
Why is an opinion relying on the VA's definition of insanity imperative?
Because modern psychiatry no longer deems persons "insane."
144
T/F) Insanity can overcome most obstacles/barriers to benefits.
T
145
If NG activated by state governor for flood relief services?
That "activation" is not considered eligible for VA benefits.
146
Active duty for training [reserves] applies when?
When deployed for federal purposes.
147
Under 38USC § _____ ( ), the VA considers a person a veteran if they were discharged under conditions other than dishonroable.
38 USC 101(2) = Veteran
148
Only a ____ court martial can impose a dishonorable discharge.
GCM
149
Two times the VA will almost always determine the discharge was DH?
1. DH
2. Admin
150
Statutory bars to VA benefits?
1. Hacksaw
2. AWOL [180]
3. Deserter
4. Officer resigns for good of service
5. Alien in time of hostility
151
CFR bar to benefits?
1. MT
2. WM
3. Mutiny / spying
4. Accepting discharge to escape general court martial
5. homo acts
152
The most difficult bar for VA adjudicators and advocate is a discharge based on what?
Moral turpitude
153
When does the VA make its own character of service determination?
When the military characterized the discharge as less than fully honorable.
154
T/F) Persons who received involuntary discharge due to RIF is ineligible for any VA benefits.
True
155
Two biggest examples of possible willful misconduct?
1. Alcohol abuse
2. Drug abuse
156
3 fundamental requirements for each issue claimed?
1. CD supported by competent evidence
2. In service event "at least as likely as not"
3. Medical nexus between the two above
157
Does disability have to be a specific medical diagnosis in order for SC to be granted? Example if no?
Pain can be granted if resulting in a "functional loss."
158
Regarding requirement #2 [ISE], it must be "at least as likely as not." What should you remind the VA?
Benefit of the doubt goes to the veteran.
159
This is the single-most common reason for denial of SC.
Medical nexus lacking [also signatures lol]
160
5 ways to establish medical nexus service connection?
1. Direct
2. Aggravated
3. Presumed
4. Secondary
5. VA injury
161
Regarding 1154(b) Vets receive favorable treatment for any incurred event because....
.... military record keeping may be deficient under combat conditions.
162
For 1154(b) to apply?
Vet must have been engaged in combat with the enemy.
163
T/F) If VA grants diagnosis related to fear induced PTSD.... the requirement for corroborating evidence is eliminated.
True
164
How many priority groups?
8
165
PG 1 =
PG 2 =
PG 3 =
1 = 50% or more
2 = 30-40%
3 = 1--20%
166
VA will always use what CFR for rating schedule? [Exam]
38 CFR chapter 1 [PART 4] subpart b
167
Intent to file form?
0966
168
