Defending America's Defenders: Advocating on Behalf of Georgia's Military Veterans

• Jurisdiction: Georgia,United States
• Citation: Vol. 7 No. 4 Pg. 0002
• Pages: 0002
• Publication year: 2002

Georgia Bar Journal Volume 7.

GSB Vol. 7, No. 4, Pg. 2. DEFENDING AMERICA'S DEFENDERS: Advocating on Behalf of Georgia's Military Veterans

Georgia State Bar Journal
Vol. 7, No. 4, February 2002

"DEFENDING AMERICA'S DEFENDERS: Advocating on Behalf of Georgia's Military Veterans"

By Harold Ronald Moroz

With some 769,0001 veterans2 residing in the state of Georgia, the prospect that your practice will encounter a veterans law issue is great. Fort Benning, Fort Stewart and Kings Bay Naval Submarine Base are but a few of the military bases located throughout the state, and Georgia also hosts a large veterans' support structure that includes Veterans' Administration hospitals, clinics and assistance centers

Based on this large military presence, Georgia attorneys have a good chance of being called upon to represent a client who has a claim based on his or her status as a veteran

Veterans law issues manifest themselves in a myriad of ways They may be embedded in a civil or criminal law matter, or arise as an ancillary issue in the form of a veteran's claim or a federal tort claim involving injury, death or damage to property. The underlying cause of the event that gives rise to the claim may be rooted in a known or unknown service-connected disability (e.g., post-traumatic stress disorder) or in a negligent act of an agent of the federal government. Regardless of how they arise, attorneys must be attuned to the unique issues and complex, time-sensitive procedures that veterans law issues bring in to play

This article examines the procedures that need to be followed in pursuing two of the most common types of claims involving veterans: (a) a claim before the Department of Veterans Affairs (VA); and (b) a claim brought under the Federal Tort Claims Act.3 With regard to the first type of claim, this article presents an overview and analysis of both a typical claim before the VA and of an appeal to the U.S. Court of Appeals for Veterans Claims. The article then goes on to provide an overview and analysis of a claim prosecuted under the Federal Tort Claims Act.

ADJUDICATION OF A CLAIM BEFORE THE VA

A claim brought by a veteran before the VA traverses a myriad of gauntlets. (See chart at right titled Veteran's Adjudication Process.) After a claim is filed, the VA has a duty to assist the veteran in developing and establishing his or her claim,4 and the relationship is non-adversarial. In addition, the VA has a duty to infer issues or claims not expressly raised by the veteran.5 Recent legislation placed an even greater burden on the VA when it comes to assisting veterans at this juncture.6

Suffice it to say, the often long road traveled by a veteran's claim presented to the VA frequently begins rather innocently. A claim may be presented at any one of 58 VA Regional Offices (VARO) either informally7 or formally on a VA Form 21-526. A typical claim can involve a hearing loss originating from the firing of weapons during military service, wherein the veteran seeks hearing aids, medical attention and/or monthly monetary compensation based on the severity of the disability. Once the claim is received, a threshold review is conducted to verify that the claimant is an eligible veteran. Character and dates of service are of particular concern.

Following this review of the claim and gathering of information, the claim, in most cases, will be referred to a VARO rating board. The board usually consists of three members, one of whom is a medical specialist. The board makes a determination of the claim on a "Rating Decision" which is a judgment as to whether the disability is serviceconnected. If it is determined to be service-connected, the VA will address that particular disability, including such options as further medical evaluation, the authorization of medical treatment at government expense and/or monthly monetary compensation. The veteran then is notified of the determination through an Award Letter or a Denial Letter.8 When the latter is issued, the letter must include a statement of the reasons for the decision and a summary of the evidence considered by the VA.9

UNIQUE STANDARD OF PROOF: BENEFITOF-THE-DOUBT DOCTRINE

Peculiar to veterans law is the standard of proof used to decide a claim. When all material issues of record are considered and the evidence is in equipoise, the veteran will be given the benefit of the doubt. This Benefit-of-the-Doubt Doctrine, also called the Doctrine of Reasonable Doubt, has been codified. 10 In construing this doctrine, the U.S. Court of Appeals for Veterans Claims held that the veteran "need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail. . . [and] the preponderance of the evidence must be against the claim for benefits to be enied."11 In other words, the veteran is given the benefit of the doubt.

Should the veteran's claim be denied at the VARO level, the veteran has the right to appeal that decision. An appeal is perfected by a Notice of Disagreement (NOD) to the VARO. This notice consists of "a written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination."12 There is no formal language or particular VA form required in order to establish a NOD.

Once the NOD is received, the VARO must again review the file and either grant the claim or continue the denial. At this point, the VA may issue a decision in the form of a Statement of the Case, but it is has no statutory or regulatory deadline by which it must do so.13

Should the VARO continue the denial and issue a Statement of the Case, the veteran has the right to appeal the decision to the final arbiter of the administrative appellate process, the Board of Veterans' Appeals (BVA). Such an appeal is perfected on a VA Form 9, and must be filed by no later than 60 days from the mailing of the Statement of the Case or the end of the one-year period following the date of the mailing of the VA Letter of Denial, whichever is longer.14

Appeals to the BVA are considered de novo. The BVA will have the full record created by the VARO, and new documentary evidence and witnesses may be presented.15

BVA decisions are required to contain "a written statement of the Board's findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record."16

ADJUDICATION OF THE CLAIM BEFORE THE U.S. COURT OF APPEALS FOR VETERANS CLAIMS

Should the claim still be denied by the BVA, the veteran has the right to judicial appeal before the U.S. Court of Appeals for Veterans Claims. This court was established in November , pursuant to the Veterans' Judicial Review Act (VJRA),17 and was previously called the U.S. Court of Veterans Appeals.18 The court is located in Washington, D.C., and has exclusive jurisdiction to review VA BVA decisions.19

The immediate impact of the establishment of this new court championed by the Reagan administration, was twofold. First, it provided a legal remedy to the federal government's longstanding practice of barring the adjudication of claims beyond the VA level. Specifically, prior to the court's creation, if the VA decided to deny a veteran's claim, then the claim expired and the veteran had no judicial recourse.20 Since the...