WRITING APPEAL ARGUMENTS Lauren Barefoot Manager Training QA
WRITING APPEAL ARGUMENTS Lauren Barefoot Manager, Training & QA lbarefoot@vfw. org Lauren. barefoot@va. gov
LESSON OBJECTIVES • Learn how to use appeal writing method: IRAC • Identifying the Issue(s): rewrite and recognize • Listing the rules • Analyzing the facts • Concluding with the desired outcome • Review tips on writing clearly and persuasively 2
IRAC APPEAL WRITING METHOD • IRAC stands for: Issue Rule Analysis Conclusion This is the most common method used by lawyers to write briefs and responses to law school exams so it is helpful for cases appealed to the Board of Veterans Appeals (BVA) through a notice of disagreement 3
IDENTIFYING THE ISSUE • The issue is already presented to you in a numbered list in the decision being appealed and is phrased in terms of “entitlement to” the issue Examples: Service connected compensation for migraines Entitlement to pension with aid and attendance Dependency and Indemnity compensation Waiver of overpayment 4
IDENTIFYING THE ISSUE Some of the most overlooked/misstated issues are: • Earlier effective date of a rating v. increased rating or earlier effective date for service connection Example: Veteran appeals 50% rating for PTSD. Is awarded 70% rating after 3 years in appeals, but only as of exam date. Continues appeal asking not for 100%, but earlier date of 70% rating. • Separate ratings v. increased ratings Example: you cannot receive a rating higher than 40% under the diagnostic code for a certain condition based on limitation of motion, but you also have neuropathy that should be rated under another diagnostic code 5
IDENTIFYING THE ISSUE Some of the most overlooked/misstated issues are: • Propriety of a reduction v. entitlement to an increased rating While the outcome would be the same (a higher rating), the rules used for reductions are much more veteran friendly • Disagreement with the creation of an overpayment v. Request for a waiver of an overpayment You may have both issues in an appeal, but they are very different arguments: the fact that you never owed anything v. telling VA it was not your fault/you have a hardship so you should not have to pay 6
RECOGNIZING THE RULE(S) Same types of claims will typically use the same rules, some of which will be stated in the rating decision • However, there are many exceptions in veterans law, which the rating decision may leave out After identifying the issue, you can either: • Start with the facts, and match up which rules apply to those facts, or • Start with every possible rule, and see if the facts support that rule 7 Let’s look at two different examples:
STARTING WITH THE RULE Issue is entitlement to compensation with aid and attendance. Veteran is service connected at 100% for loss of use of the arm, hypertension, and erectile dysfunction. • The rules are: • • Veteran must need aid and attendance of another person For at least two activities of daily living Due solely to service connected conditions And the rating for compensation purposes generally needs to be at least 100% • Now we can look at the rating decision and the facts and see which rules VA thought the veteran did not meet, based on the evidence presented. 8
STARTING WITH THE RULE Reviewing rating decisions can help you identify trends in how VA rates cases and more easily determine whether the issue is arguable or not • In the previous example, if the veteran simply does not need assistance for activities of daily living, it would not be a good claim to appeal • If, however, there is a disagreement between whether the veteran needs assistance for one or two activities or daily living, or if there is a disagreement about whether aid and attendance is required based solely on service connected disabilities, that is a better claim to appeal 9
STARTING WITH THE FACTS If the rating decision does not tell you a lot, starting with the facts may be easier Example: Service connection for a right shoulder joint condition denied due to no event in service. Facts: Veteran claims he injured his shoulder during combat mission in Afghanistan. Post-deployment health assessment shows complaint of upper extremity problem after deployment. Veteran was activated Guard member, and did not have a separation physical. Right shoulder arthritis diagnosed 10 months post 10 service.
STARTING WITH THE FACTS In this example, the facts lead you to the rules: Combat veteran presumption can apply and presume event in service (38 CFR 3. 304) While STRs do not show diagnosis/injury, postdeployment assessment is consistent with veteran’s complaints Arthritis was diagnosed within one year of veteran’s release from active duty. If veteran had at least 90 days continuous active service, chronic condition presumptive rule should apply to show nexus 11 (38 CFR 3. 307 & 3. 309(a))
SUMMARIZING THE FACTS Type the key words or snippets of lay statements, medical opinions, service records, etc. that support the veteran’s position Include the date of the record and date uploaded to VBMS if applicable, so the rater/judge can quickly find the evidence Don’t try to write complete sentences, you’ll fill that in later 12
SUMMARIZING THE FACTS Example: Marine Corps active duty 2/2003 -2/2009 Deployed to Afghanistan – combat zone STR uploaded to VBMS April 2019 Post-deployment health assessment dated 3/1/2005 – upper extremity pain, anxiety Arthritis diagnosed 12/10/2009 Dr. Suarez Sent with claim - VBMS record February 2019 13
NON-MERITORIOUS APPEALS A non-meritorious appeal fails to meet necessary criteria – no way to argue or change the facts. Examples: • Pension when the veteran has no wartime service • DIC when the veteran and spouse were divorced at the time of death and have no children • Service connection cases where the veteran does not have the claimed disability 14
NON-MERITORIOUS APPEALS What additional evidence could make these appeals meritorious? • Hearing loss claims where there is hearing loss, but not to the level of disability under 38 CFR 3. 385 • Increased rating claim where evidence shows improvement/reduction • Freestanding effective date claims (filed more than one year after the rating decision) • Claim for disability for “exposure” to burn pits 15
WITHDRAWAL OF APPEALS If there are no facts to support the applicable rules, you have to explain this to the client and suggest how the evidence can be improved or suggest either not appealing or withdrawing the appeal. Per NVS Policy & Procedure, the client must sign if withdrawing the appeal, not the service officer, even though VA rules allow it. 16
ANALYSIS/ARGUMENT If you have facts that support the client’s claim, compare them with the previous rating But don’t spend too much time discussing the reasons the veteran’s claim was previously denied Compare: The veteran’s claim was previously denied because no event in service was established and no nexus to military service was established. The veteran’s current right shoulder arthritis was found to be a favorable finding in the previous rating. The injury in service should have also been conceded since it occurred during the veteran’s combat service, as evidenced by the veteran’s postdeployment assessment of 3/1/2005. 17
ANALYSIS/ARGUMENT You may have the same analysis/argument for multiple issues. If VA did not find the veteran’s service records, that failure of the duty to assist will likely impact all claims for service connection. Example: The issues of service connection for hearing loss, tinnitus, PTSD, and bilateral knee condition should all be resolved by VA requesting the veteran’s full service record and re-adjudicating the claim. Previously, only the records of his first period of service were obtained, but service treatment records from 2010 -2013 were not obtained. 18
COMMON ARGUMENTS Benefit of the doubt doctrine (38 CFR 3. 102) • Should only be used when the evidence is approximately equal (usually one positive and one negative medical opinion) or a lack of evidence in service and very weak positive evidence on the veteran’s side • If the evidence is 51% or more on the veteran’s side, you don’t need to argue benefit of the doubt • Benefit of the doubt is not a stand-alone argument, it just allows you to say the evidence is about equal so the tie should go to the veteran. You still need to cite rules such as secondary service connection, or DIC. 19
COMMON ARGUMENTS Failure of the duty to assist (38 CFR 3. 159(c)) • State that records have been identified but were not obtained, or a medical opinion is warranted because the evidence meets the threshold for providing an exam in 38 CFR 3. 159(c). • Common reasons that records are not obtained: wrong name, wrong address, did not find all duty periods 20
COMMON ARGUMENTS Inadequate medical exam/opinion (38 CFR 3. 326) • Once VA provides a medical exam or opinion, that exam or opinion must be adequate • Common reasons exams are inadequate: did not consider positive evidence of record, did not consider veteran’s lay statements, did not complete all required tests (especially in musculoskeletal claims), did not consider all theories of service connection, relied on results of one examination versus the disability over time, did not perform exam during a flare up, did not give reasons for opinion, was not familiar with veteran’s medical and military history, did not review 21 VBMS file
CITATIONS • Cite to the CFR and general principles such as duty to assist, adequacy of exams, secondary service connection, etc. • Also cite to the M 21 -1 if it helps you, at either the RO or the Board of Veterans Appeals (BVA). • VA Office of General Counsel Precedent Opinions and court cases can also be helpful at the BVA. • No need to go overboard, one good citation that helps you is better than three that may or may not. 22
CONCLUSION Your conclusion should ask for an outcome based on the analysis of the rule and the evidence • Grant the benefit • Restore the benefit • Provide additional development such as requesting records, providing an examination or medical opinion • Decide an issue that was missed by the RO • Re-statement of veteran’s argument, if no merit 23
CONCLUSION You can ask for more than one outcome: • For example, you can ask for VA to grant the benefit, or if there is not sufficient evidence to immediately grant, correct a duty to assist error and then readjudicate the claim. • You can also ask for more than one development task to be completed: such as obtaining federal records, requesting a new opinion based on those records, and considering a new theory of the claim. 24
CONCLUSION The veteran meets all criteria of service connection: he has a current diagnosis of right shoulder arthritis, an in-service injury during combat, and a nexus to military service. The veteran’s right shoulder arthritis was diagnosed in December 2009, within a year of his release from active duty in February 2009. Service connected compensation should be granted on a presumptive basis for right shoulder arthritis according to 38 CFR 3. 309(a). 25
CLEAR WRITING Why is clear writing important? • Reader understands it the first time they read it – rater or judge has many claims to decide and limited time • Can save time in claim/appeal process and eliminate unnecessary hearings, letters, telephone calls • Should help the reader find and understand the information The veteran’s service treatment records show onset of her conditions. The veteran’s separation physical of July 2004 shows diagnoses of hypothyroidism and bilateral carpal tunnel syndrome which began during active service. 26
CLEAR WRITING Elements of clear writing • Logical organization • Short sentences • Short paragraphs • Common, everyday words • Active voice • Use of headings • Reading ease 27
CLEAR WRITING Tools for clear writing: • Spell Check • Grammar Check • Readability: Gunning-Fog Index www. gunning-fog-index. com/index. html Texts for a wide audience generally need a fog index less than 12. Your fog index may be a bit higher due to VA jargon. 28
PERSUASIVE WRITING Why is persuasive writing important? • We are representatives of the veteran or family member, their voice • Definition of persuasive writing is presenting reasons and examples to influence action or thought: Assisting the veteran/claimant in obtaining a better result or at least a decision that fully complies with VA’s duty to assist and gives valid reasons why the claimant does not qualify for the benefit 29
PERSUASIVE WRITING • Appeal to your reader’s logic • Give your point of view in an informed and fair manner • Create feelings that lead to your point of view • Build your case 30
PERSUASIVE WRITING • Use principles of clear writing • Explain the problem • Give evidence and examples • Give a solution or a choice of solutions Remember to keep tone pleasant and professional 31
FINAL THOUGHTS Ensure you’ve addressed all the issues, looked up rules that apply, cited to pertinent evidence, and asked for an outcome Cite to evidence in the file to make it easy for the reader to find and easy to support your argument Short and clear arguments are more persuasive than long and confusing arguments 32
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