Eastside Legal Assistance Program

 Veterans' Rights Q&ARecorded 4.2.2020CHRIS: Hello, my name is Chris Lovings, I work for Eastside Legal Assistance Program. I want to thank you for taking the time to attend this webinar. We’re gonna go through some Q&A questions in regards to veterans’ rights and we’re joined today by Paul Burton. He’s a Washington admitted attorney, admitted for the US court of appeals for veterans’ claims, accredited by the VA and has been practicing since 1995 in veterans’ law. He actually did an unrecorded webinar last week along with the Minority Vets of America. There were some really great questions that were raised and we decided we’d like to sit down and actually get the answers to those questions recorded for you all. I wanna say first of all, thanks Attorney Burton for taking the time to do this. PAUL: You’re very welcome. CHRIS: Let’s start out with a question we received from Robert. So, one of the things that he asked was, many veterans did not seek out medical help during their service. Without an attorney, is filing for a benefits claim, what can veterans do to overcome the barrier? PAUL: That’s an excellent question. Let me preface my response by saying all is not lost because you did not seek medical treatment while you were in the military. The quintessential question is what constitutes evidence by the Veterans Administration. One of the things that is often overlooked when establishing an injury that occurred in service is buddy statements. Those people that you may be in contact with that you served with who know that you had the injury. Let’s just take for example, you’re a paratrooper and you had a jump and injured your leg, but it wasn’t broken so you didn’t go to the hospital to get it set because it was just like a twisted ankle, twisted knee kind of injury. So, nothing is in your medical evidence that actually indicates that you had that. But if you had buddies that you jumped with that know you had that injury, those buddies’ statements can be submitted as affidavits to establish the fact that you did have that service connected injury. The second most important one is that you can seek independent medical evaluation. You do not have to rely on what the doctors at the Veterans Administration say. If you, let’s say you’re applying for post traumatic stress disorder and you get a psychiatric or psychologist evaluation, Veterans Administration is kind of iffy, then is used by the VA to deny your claim. You can go to an independent psychiatrist or psychologist, paying for it yourself and get an independent evaluation. And if that evaluation states that there is no doubt that this person has post traumatic stress disorder and that this post traumatic stress disorder is more likely than not to have occurred in service, then that evidence becomes an establishment over and above what was not established by seeking advice in the military. And in terms of total disability for individual unemployability, you can seek independent counselors that are experts in work history and those kinds of things and they can establish for you that your work history does mean that you are independently unemployable as a result of your work history. So that would help in that case. CHRIS: Thank you, moving on to the next question. Trina asks: is individual unemployability considered permanent and total after 10 years? Or is this reevaluated as well? PAUL: Ok. Any rating by the Veterans Administration is sustainability and whether or not it’s total and permanent is a function of whether or not it’s something that’s going to be occurring over a lifetime or not. The establishment of the rating as total and permanent becomes a function of one of two things. Either, one, it has been evaluated as something is more likely than not as occurring over the entire of your life. Or, two, you have reached 55 years of age, at which case, by law, it becomes total and permanent because that is the age at which that the Veterans Administration recognizes as being the age that you are probably not going to get a job in the field that you have chosen to be in because of your age. [5:20]So, let’s say, for instance, that you’re 55 years old when you make your claim. You make a claim and the Veterans Administration certifies that claim and you get compensation for that claim as a disability, regardless of what level it is. It is total and permanent because you’re 55 years old. Now, one of the things that the Veterans Administration does that is a cautionary note that I would tell all veterans is that the Veterans Administration won’t admit it, but they put a 10 year marker in 100% disability ratings because at the 10 year mark, then you become vested in terms of your benefits. Like you can get benefits if you’ve had 100% rating for 10 years, and you pass away, then your spouse gets some compensation. You also have access to some of the benefits like your spouse can get Champ VA medical insurance. You might have some access to educational benefits as a result of that. CHRIS: You mentioned Champ VA. Can you elaborate a little bit on what that acronym stands for, if you don’t mind? PAUL: Well, VA is obviously Veterans Administration. Champ is just the term that they use to designate dependence that are granted VA medical access because they’re dependents of Veterans that have 100% ratings and have had those for 10 years. CHRIS: Got it, ok, thank you. PAUL: So, what the VA does is is that they put a marker in because of the benefits that you accrue. And I accuse them of doing this for trickery. They will of course deny that. Here’s the proviso. If you get a scheduler from the VA that says you need to come in to be reevaluated, do that. Don’t try to change the appointment, don’t ignore the appointment, don’t go because if you ignore it and don’t go, they can completely eliminate your disability. So go to it, but know this: the Veterans Administration cannot reduce your rating unless there is significant improvement that renders your 100% rating to be incorrect. That significant evidence is quoted in the Federal Code of Regulations as being sustained and measurable. Let’s just say in the case of TDIU that you have a 100% rating, you’ve had it for 10 years and you still have not been able to get a job in the field that you prepared for or that you wish to be employed in and the VA wants to reevaluate you. Unless they can show you that there is evidence that you have gotten a job in your industry on a full time basis and that becomes a measurable item, they cannot reduce your rating. So don’t be afraid of the reevaluation, just make sure you go, because if you don’t go, you will lose it. [8:55]CHRIS: Got it, thank you. PAUL: If you do go, you probably will not lose it. CHRIS: the catch-22 right? PAUL: yeah, it is a catch-22. CHRIS: Ok, and so that answers a lot of the questions that were asked previously. So basically from what you’re saying, to summarize, after you get invested for 100% disability after those 10 years, it is highly irregular that they would reduce your 100% disability, unless what you mention before. PAUL: Yes, unless they have some real substantial, measurable, sustained, significant evidence that you no longer qualify for that rating, then it’s not going to be reduced. Then, the next 10 years, to jump ahead to the other question, the next 10 years, when you get to 20 years. Let’s say you’ve had your disability rating for 20 years, then that cannot be reduced unless they can prove you obtained that rating fraudulently. And the only way that they can do that is if you submitted independent evaluation information, from say a psychiatrist that said you had PTSD, but it turns out that the psychiatrist was somebody who was faking being a psychiatrist and was just a friend of yours that lived next year, then fraud. But of course that is very very unlikely because first of all veterans don’t do that kind of things and secondly, psychiatrists, when they write their evaluations, have licenses and note those licenses and the states they’re licensed in and so forth on the evaluation that’s submitted. So fraud is a very unlikely event. We assume that we’re all honest. [10:46]CHRIS: A good thing to do for sure. So that was question about disability and the ratings. We’re gonna move to retroactive benefits. So there was an example given, veterans served in Vietnam from 1960 to 1969. Back then, began the paperwork in 1971, but those benefits didn’t begin until 2009. Can they recover their benefit retroactively from 1971. This veteran currently only receives 35%, including PTSD. PAUL: Ok, you can only recover accumulated benefits back to the most recent filing for that claim. So if there is a break in the claim period. Let’s say it was originally filed for in 1971, it was denied, you had 30 days to appeal, but you didn’t do it and you resubmitted the claim later, it does not go back to 1971. It only goes back to when the new claim was filed when you were awarded it. So the original claim is not the relevant item. The relevant item is whether or not there was a break in the claim period. And if there was, then it’s not going to go back to the original claim, it’s only going to go back to the most recent date of filing the claim upon which it was granted. And that is a common question, so I’m glad that you brought that up, that will help clarify for people. [12:23] CHRIS: This next question is in regards to different barriers. So, what challenges, if any, exist when filing a reevaluating claims for veterans who have trans identities?PAUL: That’s a very good question. My knowledge of the Veterans Administration’s policies and procedures shows that it only goes back to about 2012 when the Veterans Administration started recognizing that as a legitimate area…issue if you will and that it was something they needed to be involved in treating. And there is a Veterans Health Administration directive 2012-003 that is aimed specifically at helping transgender veterans. But unfortunately what that covers as far as the “help” – medical and psychiatry and that’s about as far as it goes. And the medical is probably going to be limited to medication. So the full needs of transgender veterans are not being met, but the issue itself and I use the term issue simply as a means of identifying what we’re talking about. That is still in development if you will. The Veterans Administration has identified in 2012 the fact that it needs to be addressed, but it has not fully developed that address as far as I know to include everything that a transgender veteran needs. So, summary, limited amount of service available. The best thing to do would be to continue to agitate for the services that are needed, either through contacting congressmen, senators or writing the VA and explaining to them what services are needed but are not being made available to those veterans. [14:55]CHRIS: Got it, alright next question. Maybe veterans are frustrated with the VA claims system and appeals. What are your recommendations and strategies that you’ve seen work or currently being provided to help those veterans better understand and navigate the culture of the system? PAUL: Yes, frustration is something permeates the entire system. And I’m not making any excuses for the VA because I actually operate on the opposite side of the Veterans Administration. But the number of claims and the funding of Veterans Administration by Congress and so on. All of those things led to frustrations because of how long it takes to get something done. What I would suggest that veterans do is several things. One, focus on the claim that you have submitted and the evidence that you need to support that claim in order to get it certified so that you get the compensation that you deserve. Know what constitutes valid evidence and go after that evidence. We talked about buddy statements, we talked about independent medical evaluations or mental health evaluations. Those are all good evidence. Concentrate on what it is you need to establish your claim and try to focus on that and not the frustration that comes with the time that goes by trying to get it done. Another thing is don’t expect anyone to care about your claim more than you do. You can hire an attorney, you can have a veteran service officer helping you, but none of those people are going to care about your claim as much as you do, so you are going to be responsible for developing the evidence that you need. An attorney is not going to go out and contact your buddies and get them to make the statements they need. You have to do that. So, realize that nobody is going to do this for you, you have to do it yourself. Another thing is there’s a lot of misinformation out there. One of the frustrations that’s created is that misinformation sometimes develops into expectations which are unrealistic. So what I would suggest is, know where to go to get real, valid, true renditions of what is and is not veterans law. For lay people, I think that the best source for that is a website called . I’ll give you a little history on that. was originally developed by Washington reporter – he was a national level reporter, but he lived in Washington, in Vancouver. He had a veteran who helped him with that website who lived in Georgia. Unfortunately, the gentlemen that was the journalist that established this site and developed it, was a victim of cancer and passed away. Then the veteran who assisted him in Georgia took over that site and has continued to update and keep that site viable. . You can go to that site and there is a listing of each of the different issues, like permanent and total, like reevaluations, post traumatic stress disorder, medical evidence, all of those kinds of things are discussed on this website. It’s all valid information that is not something that is just a rumor floating around. It’s a good site to get real evidence. [19:13] CHRIS: Great. And one of the things that you had mentioned as you mentioned this website, another resource you had mentioned was . Since we’re talking about resources, can you sort of explain what that website is and its uses? PAUL: Yes, I’m glad you mentioned that because it kind of floated out of my mind there for a minute. We were talking about buddy statements and is a website that is developed specifically to bring veterans who serve together together in one website. So they have literally thousands and thousands of veterans who have signed up on that website. Each of them has their own page. And on this page, it may have their veteran service ribbons, it may have an explanation of what they’re doing now. It identifies what units they were in and what time they were in those units. You know, like for instance, I was in the marine corps, so I went to boot camp. And those who were in boot camp with me would be able to find me if I were registered on that site and vice versa. So it’s kind of a buddy site, and very good, it’s run by veterans for specifically for the purpose of putting veteran buddies back together. CHRIS: Thank you, and then you know speaking of resources as well, some other resources for those veterans that are around, Minority Vets of America, they have that website up, I’m also looking at the Washington Department of Veteran Affairs. That website is dva.. The VFW and then VSO officers as well. Are there other resources you can think of? At the national or local level? PAUL: Yes there are veteran service organizations that are chartered by Congress to serve veterans and they have special status because they very often will have veteran service officers that are available to help veterans actually file their claims. Those would include the Veterans of Foreign Wars, the American Legion. For marines, it would be the Marine Corps League, which is the only congressionally chartered Marine organization. DAV which is the Disability for Veterans organization. I’m not doing a very good job [laugh] saying exactly what the acronym is but DAV is another congressionally chartered organization. Also, for veterans who were wounded, there are some Purple Heart association and that is a congressionally chartered organization as well. [22:27]So, those are sites where you can get a veteran service officer to help you file a claim. Now, once a claim is denied, hopefully it’ll be approved, but if it’s denied, then my suggestion is that you need to move to an attorney. And I realize that I am an attorney and that may sound like a conflict of interest but it isn’t because veteran service officers are trained to help file claims, but they are not attorneys who have the knowledge on how to handle appeals. So their knowledge is a lot more limited in the case of appeals. You have deadlines, you have language, you have the laws that are both codified in the code of regulations and also the policies and procedures of the Veterans Administration. So, here’s where I would look to find an attorney. The first place is place is website because they list all the attorneys who are accredited to help veterans. Try to find someone you can actually go to their office and talk to them – a face to face relationship with. It’s not required because it’s federal law so you could actually have an attorney in Georgia if you wanted to, who can handle your claim, but I just like that face to face thing. Second place you could look is the US Court of Appeals for veterans claims. Now, sometimes denied claims, once they go through the administrative part, will go all the way to the federal court, which is the US Court of Appeals for veterans claims and they list the attorneys who are admitted to practice before that court. Now you can find them listed by state and that’s a good resource. Another resource is the National Organization of Veterans Advocates which is mostly attorneys. And they have a listing, again by state of all of those who are members of the organization. And if they are members of that organization, they are most likely accredited by the VA and members of the US Court of Appeals for veteran claims. So that’s 3 different places that you can look to find an attorney that’s close to you, practices veteran law, and can assist you with your appeal. Keep in mind that there’s a 30 day window once you get a denied claim, then you have 30 days to appeal that claim. You need to know what your resources are and get those lined up fast, 30 days goes very fast. CHRIS: Way too quickly sometimes. When you were speaking about resources, can you talk more about the resources you have shared before? I see here mentioned, Washington State Attorney General’s Office has resources as well. Can you talk a little bit more about those? [26:00]PAUL: Yes, when you are trying to determine what benefits are available to you, the website has a listing of those. But sometimes the explanations are not as palatable to veterans as they are to attorneys. So, there was legislation several years ago in the state of WA that established a position at the Washington Attorney General’s Office just to deal with Veterans issues. A person was hired into that position and one of the first things they did was to develop a very comprehensive booklet to explain to the veterans in Washington what their benefits were, both national and state, what those resources were. I will tell you that in King County, there are extra resources available to veterans to help them with claims and services and those are explained in that booklet that’s available on the website of the Attorney General of Washington. And just let me address what those extra benefits are and how they come about in King County, which is the greater Seattle metropolitan area. There is a levy on the property taxes of the resident property owners in King County, which is a nickel. So, every property owner is a nickel per year in property taxes and all of that money accumulates and goes into a fund. So, King County maintains two offices, one in Seattle, one in Tukwila, that you can as a veteran make an appointment and go in and talk to them about what benefits are available to you, what help you may available if you’re a homeless vet for instance. What help may be available to you if you have some incarceration problem or something. All of those things are listed in the Attorney General’s booklet, which is very easy to find because all you have to do is google Washington Attorney General and when their website pops up, just look for the veterans’ information. CHRIS: Yes, and it is right underneath their resources tab. Speaking of resources for veterans, we’re gonna transition over to resources for family members, partners, caregivers of veterans who are disabled. So, are you aware of any resources for those? PAUL: I am. There are some specific organizations that address just the caregivers and what the laws and policies are of the Veterans Administration regarding the caregivers and also give caregivers a place where they can do some gathering and webinar education items. And those are easily found by google, there’s more than one of them, I’m not gonna list all of those for you. I’ll refer you to googling Veterans caregivers and it’ll all come right up for you. [29:47]I will say that the Veterans Administration as far as caregivers is concerned has become better and better because of the aging WWII veterans that had disability claims. A lot of that generated because of those World War II and Korean era veterans because they had reached end of life and caregiving became a big issue and so those things were a result of WWII and Korean veterans has become much better developed and communication and education and so on available to caregivers has become much better. CHRIS: That’s really good to see. When we’re talking about those that are providing help for veterans that are suffering from PTSD or dealing with PTSD, what can be done to diversify the staff of those organizations so there are more people of color providing these services to minority veterans?PAUL: You know, that’s a great question. I do know that the Veterans Administration like most of the federal government agencies, are very aggressive in trying to hire minority candidates to fill positions. The problem in psychiatry services, with psychiatrists and psychologists, is the availability. So, I think that the best place for us to develop that resource so that it’s available to us, and so that we have more diverse psychologists and more diverse psychiatrists is to develop the system right from the beginning to recruit minority candidates to go into those fields and get their education. Maybe, for instance, if the federal government would pay for their education, in return, they have a commitment to spend 3 or 4 years in the Veterans Administration, helping veterans, then they’re more available to minority veterans who may feel more comfortable with a minority or a diverse person who can render those psychiatry or psychologist services to them. I think we go all the way back to the beginning to try to develop minority candidates who can go through school, get that education, become certified, and then become employees of the Veterans Administration. It doesn’t do any good to just go out and have a minority recruitment fair, if there’s no one to recruit. [32:42] So these kinds of programs very often come about when someone advocates for them. So, one of the things that I would ask the minority veterans association to do is to have everyone contact their congressman and say look we need diverse candidates available to us to recruit into the veterans administration. And the best way to do to that is help develop them, by making scholarship available to them and recruiting people that are eligible to take those scholarships and then help them through the system. So that’s what I think. CHRIS: Yep, that makes perfect sense. Must advocate for yourself in certain situations, advocate for yourself all the time. PAUL: I think it’s a legitimate issue. The Veterans Administration has a very very good diversity program. A lot of the employees at the Veterans Administration are people that have a diverse background, diverse gender, diverse ethnic, culture and so forth. But if candidates are not available, then they can’t recruit them.[34:06] CHRIS: Absolutely. That is it, as far as list of questions. Is there anything that you would like to kind of broadly speak about or would like to address that we may have missed here? PAUL: one of the things that we brought up that I would like to reiterate is the frustration that you have with the Veterans Administration when you file a claim and it gets denied, you have to go through the appeals process and sometimes it takes them two years to pay any attention to it. Frustration is something that is manageable. The way I would suggest veterans to manage it is to use that time to develop evidence that can be used because that evidence can be submitted at any time and take control of your own claim. Develop those buddy statements, get those independent evaluations if you happen to have medicare or Medicaid or insurance, then you can use that to get those independent medical or psychiatric evaluations that you need to establish your claim. It’s kind of like us being locked down right now because of the COVID-19. We’re all frustrated with it but we all understand the necessity for doing it. So taking control of our claim, not letting the frustration overwhelm us, concentrating on developing the evidence, and pursing our claim ourselves. Nobody else is gonna know as much about it or care as much about it as we do ourselves is the best way to deal with it. I’d like to thank the Eastside Legal Assistance Program for helping veterans and doing this recording and continuing education program for those minority veterans, very much needed. I appreciate ELAP doing it. I’ve been a volunteer with ELAP for I guess 11 or 12 years now. I was actually on the board of ELAP for a brief period of time back in the day – back in 2009. I think ELAP does a great job and I’m so happy to see that they’ve extended the help they have available to give some attention to minority veterans. CHRIS: I want to thank you for taking the time to do this and giving a chance to give your knowledge out to those that may not be aware. So I work as a community engagement manager for ELAP, we provide free full legal aid for low income clients that live east of the I-5 corridor and domestic violence survivors throughout all of King County. So we do this in a variety of different ways. Currently because of the lockdown, we’re doing phone consultations and general law, family law, immigration law. We’re also doing know your rights presentations, webinars, and seminars and all this could not be done without all the staff, the volunteers such as yourself by taking the time to do this. So, we really appreciate it. I’m going to close out with mentioning the website for ELAP is: . My personal information Chris Lovings. My email is chris@. This is attorney Paul Burton who’s been presenting and I just want to thank you again for taking the time to do this. PAUL: You’re very welcome. ................
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