I am an attorney specializing in disability law and also a board certified surgeon (transplant surgery) still licensed to practice medicine.  I am also most proud of being a combat veteran.  Here is my picture as a young Captain in the Israeli Seventh Brigade (armored).  In 1973, my brigade, with only 80 tanks, held the Golan Heights against an assault by more than 600 Syrian tanks and artillery pieces, and led the counter attack that won the Yom Kippur War.  I am passionate about defending veterans’ rights and firmly believe that my medical career gives me a great advantage in understanding and challenging faulty medical rating decisions.  As an attorney admitted to practice before the U.S. Court of Appeals for Veterans Claims, I am committed to understanding the very complex legal rules and decisions involved.

Frequently asked questions

Do I really need an attorney to represent me before the Veterans Administration (VA)?

For many decades prior to 2007, the VA policy was to discourage attorneys from representing veteran claimants by making it a federal crime for an attorney to charge more than $10 for representation.  Reforms in the way the VA handles claims have improved the general application process, but many claimants are still extremely dissatisfied and confused by the regulations and the case law.  Recent statistics show that only 17% to 28% of cases are approved at the Board of Veterans’ Appeals (BVA).  Fortunately  the US Court of Appeals for Veterans’ Claims (CAVC) reverses the majority of the adverse BVA decisions.

     Between 1995-2006, the CAVC heard 18,000 cases in which the claimants had been denied benefits at the BVA level.  In almost 80% of the cases, the CAVC either reversed the BVA decision or remanded it for re-adjudication, finding at least 1 legal error in the BVA decisions.  It is thus essential that the veteran consider from the outset whether his claim can be heard by the CAVC.  Only members of the CAVC bar can represent Claimants.  The CAVC will not accept new information not previously provided to the Regional Office (RO) or to the BVA, so hiring an attorney early can ensure that all relevant evidence is properly presented and that all legal arguments are raised before an appeal is submitted.

Volunteer Layperson advocates have diligently and compassionately represented veterans for decades.  The lack of legal education and large caseload significantly limit their otherwise commendable and dedicated service. 

      In June 2007, Congress, in response to demands from veterans who were frustrated with the prospect of navigating the complex bureaucracy without an attorney, approved attorney involvement in representing claimants before the VA, The law now allows attorneys to represent claimants before the VA and to charge a reasonable fee.  The law defines a reasonable fee to be 20% of the past-due benefits which the VA pays directly to the attorney.

Who is eligible for benefits?

Benefits are given to veterans and to their dependents or survivors.  A veteran is someone who was discharged under conditions other than dishonorable.  For members of the National Guard and Reserves, disabilities are considered service-connected if the injuries occurred or were aggravated in the line of duty.  Members of the National Guard are eligible only if they were called to service by the President, not by a state governor.  Only veterans with war-time service are eligible for non-service connected disability pension benefits.  This does not require the veteran to have served in a combat zone, only that he/she was in service during the designated periods.  If the veteran served at least 90 consecutive days, and if only one of those days fell in a period designated as war time, then all of his/her service is considered war-time.  There are no benefits if the injury was due to willful misconduct.

War-time dates include:  Korean Conflict: from June 1950 to January 1955; Vietnam (Southeast Asian) Conflict from August 5, 1964 (but from February 28, 1961, for those who actually served in Southeast Asia) to May 7, 1975; and the Persian Gulf Conflict: from August 2, 1990 to February 28, 1991.

What is the difference between compensation and pension?

Compensation is for a veteran who was injured or who contracted a disease during service.  Pension is for a veteran whose medical condition is not solely the result of an injury or disease contracted during the military service, but who served during a time that is defined as war time.  Pension is income-dependent and is reduced by other income.  Compensation is paid in full regardless of other income.  Survivors of veterans who died on active duty, as well as survivors of veterans who died as a result of service-connected disability, are eligible for Dependency and Indemnity Compensation. 

How do I file for veterans’ disability?

A claim for veterans’ benefits originates at the agency of original jurisdiction, or Regional Office (RO).  If the RO denies the benefit, the claimant files a Notice of Disagreement (NOD) at the RO.  After the NOD is filed, the RO may ask the claimant whether or not he desires a de novo review (i.e., a complete review at the RO without giving weight to the previous denial).  If the claimant does not request a review by a Decision Review Officer (DRO) , then the RO must mail the Statement of Case (SOC), which must explain the reason for the denial.  If the claimant is dissatisfied with the decision of the RO, he/she can appeal the decision to the Board of Veterans’ Appeals (BVA), which makes the final agency decision. 

How do I appeal the RO decision?

After the RO mails the SOC to the claimant, the claimant submits the appeal by filing VA Form 9, either 60 days from the date of receipt of the SOC or during the remainder of the 1-year period from the date of the RO notice of its initial decision, whichever is later. 

Is the process of filing for veteran’s disability similar to Social Security Administration (SSA) disability?

No.  First, the SSA focuses on a claimant’s ability to do any work in the national economy, even if he/she cannot perform his/her previous job.  The VA may establish service-connected disability even if the veteran can still work.  Second, the SSA follows the doctrine of res judicata, under which a decision by the SSA at any level is considered final if it is was not appealed within 60 days.  Res judicata cannot generally be challenged.  VA disability permits re-opening of the claim many times, and res judicata operates only when a claim has been appealed to the US Courts of Appeals for Veterans’ Claims (CAVC).

Am I entitled to help from the VA?

Yes.  The VA has a statutory duty to assist the veteran in developing his/her case.  This has been defined as the cornerstone of veterans’ claims.  The VA has a duty to conduct medical examinations and to obtain VA and other governmental records.  The Veterans’ Claims Assistance Act of 2000 eliminated the requirement that the claimant must first file a well-grounded claim in order to earn the rights of VA assistance. 

Can I submit new evidence while my appeal is pending?

Yes.  Although filing a Notice of Disagreement technically begins the appellate process, it does not mean that the RO file is closed.  Claimants may submit additional evidence to the RO, request a hearing at the RO, or request DRO review, which may result in a new RO decision.  The record may be constantly expanded at the RO level.  This forces the agency to re-evaluate the claim continually.  Multiple RO decisions and multiple supplemental statements of the case may be prepared prior to an appeal.  This may delay the transmission of the case to the BVA, however, and often misleads the claimant regarding important deadlines in his/her appeal.  The record can be supplemented at the BVA level, which examines the case de novo with an open mind.

What are the advantages of a new claim as compared to reopening?

There are three types of claims: new claims, reopened claims, and claims for revision of a previous final RO decision based on clear and unmistakable error.  It is advantageous to have the claim categorized as new or original, rather than reopened, despite the fact that it has been denied before, since the claimant does not have to provide new and material information in order to file a new claim.

For example, if the previous request was for a knee injury, and now the request is for a mental disorder, such as Post Traumatic Stress Disorder (PTSD), the claim for PTSD would be considered a new application.  Each claim is specific for a single medical condition.  A claim for schizophrenia is different from a claim for PTSD.  If the claim for PTSD is denied, a new claim for schizophrenia is allowed.  A claim for increase in the disability rating is also considered a new claim.

Claims for non-service-connected pension benefits are always new, because they depend on the veteran's current income to calculate the benefits allowed.

"Final denial" means that the denial was appealed unsuccessfully at the highest level, or the claimant simply let the time expire.  Claimant is still entitled to file a new claim. 

Another opportunity for a new claim is when the law and regulations have changed regarding a defining criteria. 

How do I reopen my claim?

After the VA issues a final decision, the claimant must submit new and material evidence before the claim is actually reopened.  In its two-tiered evaluation, the RO first determines whether the material submitted is new and material rather than redundant and duplicative.  In the second step, the RO determines whether the new information supports the claim and results in approval of benefits.  There is no time limit within which a reopened claim must be filed.  New material sufficient for reopening may be another physician's opinion reiterating the opinion of the original treating physician.

If I can always reopen my claim, why should I bother appealing the initial denial?

The effective date for payment of benefits is generally the date of the initial application.  For example, let’s assume that you applied for benefits on January 10, 2002.  In July 2003, the RO denied your application.  You successfully navigated the appeal process and were finally awarded benefits in July 2008.  Your past-due benefits consist of all payments you were entitled to from January 10, 2002.

Now, let’s assume that you missed the deadline for the appeal, and that you filed for reopening in August 2006, and that in July 2008, the RO awarded you benefits.  Your past-due benefits will begin in August 2006, on the day you filed for reopening, not on January 10, 2002, when your initial application was filed.  You have lost 4 years of past-due benefits.

I missed the deadline for appeal.  Does this mean that I lost all the past-due benefits?

Not necessarily. Alleging a clear and unmistakable error (CUE) in a previous final RO decision is considered an original claim rather than a reopened claim.  Revision of the prior final decision based on CUE is powerful, because it allows the claimant to receive an earlier effective date.  The CUE claim can be filed at any time after denial, but requires a pleading with specificity as to how the CUE has occurred, rather than a general request for review.  A CUE claim is difficult to win.  It looks only at the facts and the regulatory provisions that existed at the time of the denial and not at the current medical condition and current law.

When should I file a claim?

The effective date of the claim is the date the claim is received or the date the entitlement arose, whichever is later.  In order to preserve the effective date, the claimant must merely request the benefit.  A simple letter from the claimant stating that he requests benefits is acceptable to the VA as an interim application for benefits, or as an informal claim showing intention to file for benefits.  Then the VA must provide the claimant with any forms necessary. 

What type of information does the RO need?

To be awarded benefits, a claimant must provide:

1) competent evidence of current disability,

2) evidence establishing the event during active service, and

3) evidence associating the disability with the veteran’s service.

To prove service connection as well as actual disability, the claimant is encouraged to provide his/her own detailed statement, as well as detailed statements from lay persons, regarding the frequency and severity of symptoms and their effect on daily activities. 

What is the VA disability rating system?

Unlike the SSA which grants benefits for persons who are unable to work in any job in the national economy, the VA grants benefits for the potential of an impairment to decrease one’s ability to earn a living.  The rating system provides degrees of impairment from 0-100% in increments of 10.  The lowest compensable rating is 10% which pays a claimant $115/month (as of December of 2006).  A 100% rating provides for monthly benefits of $2,471.

A detailed rating grid is broken down by sections pertaining to various organs or classes of diseases.  Each body system contains a series of diagnoses, each with a numerical diagnostic code.  Each diagnosis is then broken down in ratings from 0-100%.  The degree of disability increases as the severity of symptomatology becomes greater.  For example, a rating of 30% for ulcerative colitis connotes moderately severe colitis with frequent exacerbations, whereas a rating of 100% for ulcerative colitis requires a show of pronounced colitis with marked malnutrition, anemia, and general debility.

Obtaining a rating of even 0% for a condition is important, in that it sets the ground for increasing the rating if the condition gets worse, without the need to prove service connection.

Where there are two or more service-connected disabilities, the overall percentage is computed by “combining” the individual ratings, not by adding them together.  For example, a 30% service-connected rating for one condition, plus a 20% service-connected rating for another condition, will result in a 40% combined rating, not 50%.

Analogous ratings are for disabilities that are not listed in a rating schedule, but that could be rated under a closely related disease or injury.