Thus far, operations at the VA surrounding disability benefits appeals have continued as close to normal as possible. If a Veteran files a claim for benefits, that claim should be processed as usual. However, there are a few key, practical changes that may affect some claims more than others.
One of the main disruptions thus far has been the suspension of Videoconference, Central Office, and Travel Board hearings. Videoconference and Travel Board hearings are before a Veteran Law Judge of the Board of Veterans’ Appeals. Many Veterans wait years for their opportunity to be heard, only to find that their hearing has been suspended or cancelled due to the pandemic. While they do not require the same wait time, Central Office hearings can be about essential matters like reductions/severances or reconsiderations.
Veterans who have had their hearings cancelled should see this as an opportunity to act. While those hearings might one day be rescheduled, Veterans may be surprised to hear that their written testimony can have just as large an impact on their claims—and sometimes more. While a hearing can be a stressful environment in which Veterans might struggle to recall important details of their case, a written statement can provide the opportunity for contemplation.
Another benefit of a written statement versus a hearing, both during this time of social distancing and beyond, is it can reduce the time on an appeal. Particularly regarding Board hearings, it can take years from the date of the request to actually get in front of a Veteran Law Judge, only to say the same things that would have been in a written statement to begin with. It’s important that Veterans understand this is not like a courtroom. Rarely will a Veteran Law Judge issue a decision based on the hearing, and many Veterans feel like they wasted years waiting for a hearing that does not produce the desired result. Unless a hearing can be considered vital, which Veterans should discuss with their representative, a written statement should be considered a viable alternative.
Thus far, the VA has not notified Veterans of any delays for compensation and pension examinations (C&P exams), which are the medical examinations required to evaluate disability claims. Since C&P exams are often times conducted inside VA medical facilities where sick patients are also being treated, it makes sense to be concerned about attending those appointments. This is particularly true of Veterans who suffer from conditions that make them more susceptible to complications from coronavirus: the elderly, those with autoimmune diseases, those who are pregnant, etc.
Unless the VA itself begins to cancel C&P exams, this leaves Veterans in a tricky situation. The VA will deny claims based on missed exams. However, in order to miss an examination without repercussions, a Veteran must be able to show “good cause” for the absence. According to the regulations, examples of good cause include “the illness or hospitalization of the claimant, death of an immediate family member, etc. For purposes of this section, the terms examination and reexamination include periods of hospital observation when required by VA.” 38 C.F.R. § 3.655. Notice that “potential illness” is not included in the list.
If a Veteran is concerned about exposure to the coronavirus and does not want to attend their C&P exam during this time of pandemic, they can call the VA and submit a statement outlining the good cause for missing the exam. While this might not necessarily be considered good cause in the short term, having the reason for missing the exam on record might help in the long run, particularly if the Board of Veterans’ Appeals reviews the case.
Our team at Berry Law will continue to fight for our Veteran clients as we work through the impacts of COVID-19. We want you to know that we are still open and working on your appeals. If you have any questions about your claim or would like us to help you appeal your VA decision, call (888) 883-2483.
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