Reopen VA Claim under Procopio v Wilkie

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Ed Ball·Monday, February 4, 2019

Perhaps you last received your VA denial letter years ago, became frustrated and walked away from all the aggravation. Since that time you’ve developed additional chronic disabilities that are on the VA Diseases Associated with Agent Orange. With the Procopio v Wilkie decision restoring benefits as noted in the Agent Orange Act of 1991, it is in your best interest to file a fully developed ready to rate claim, to bring your VA Claims folder up to date, especially if the most recent medical evidence may reflect eligibility for a higher percentage of disability.

  1. VA Form 21-22 dated Feb 2019 or later. Claims previously filed before this date claimant must fill out the latest version of VA Form 21-22.
  2. VA Form 20-0995 Supplemental Claim form is used to reopen claims previously denied, giving you the opportunity to address the issues previously denied on your VA Denial Letter. Your new and material evidence for Higher Review will be Procopio v Wilkie and the appropriate deck log, as well as any medical documentation to show the chronic disability(ies) have indeed gotten worst. List all chronic conditions relating to presumptive exposure to herbicides. Including all secondary conditions that pertain. Including Hypertension. List all VAMC/CBOC locations/dates for treatment. VARO will use their network and obtain copies of those VHA medical records.
  3. VA Form 21-686c - For claims eligible for 30% or greater, the receipt of this form authorizes VARO to pay for each authorized dependent, when in doubt and you have dependents, file.
  4. VA Form 21-4138 – Include the statement: The Federal Circuit Courts decision on 29 January 2019 in Procopio v Wilkie reverses Haas v Peake 525 F.3d 1168 (Fed. Cir. 2008) states claimants who “served in the 12 nautical mile territorial sea of the “Republic of Vietnam” are entitled to § 1116’s presumption if they meet the section’s other requirements.” Decision made based on Congress intent and IAW the territorial seas as noted in United Nations Convention on the Law of the Sea (UNCLOS) of 1982. See attached documents to include [identify the documents you have attached].[If you are receiving treatment for Hypertension:] National Academy of Medicine found: “First, the current committee concluded that the information now assembled constitutes sufficient evidence of an association between exposure to at least one [TCDD/Dioxin] of the COIs [Chemicals of Interest] and hypertension. “ As noted in Veterans Agent Orange Update 11 (2018).
  5. VA Form Disability Questionnaire for each disability, gives the VARO an insight to the current severity of your chronic disability(ies), these forms are completed by doctors, your attending physician/specialist. Your VAMC may have an office dedicated to filling out the DBQ forms for those obtaining medical services at their local VAMC/CBOCs.
  6. Provide copies of Medical Treatment Records, Surgery Reports, Progress Notes, etc.. for medical services rendered outside of the VAMC/CBOC.
  7. If this is an original claim, you’ve never filed with a VARO before, then submit a copy of your DD-214, ensure it includes your Character of Service, i.e., Honorable, Under Honorable Conditions, etc.

If you suffer from a chronic disability that is not on the VA Diseases Associated with Agent Orange, you will need to obtain a complete copy of your VA Claims folder, this should include your Military Treatment Records, Induction/Separation Physicals, Military Personnel Files to include a listing of Duty Stations, all recent medical documents and obtain an Independent Medical Opinion by a doctor that is knowledgeable in the diagnosis and treatment of your chronic disabilities, to review the entire VA claims folder, and provide a Nexus statement, or link to your military service, i.e., “at least likely as not as a result of his military service”, and they will further provide substantial medical statements to substantiate their professional medical opinion. This is done on their official letterhead, dated and signed with their credentials behind their name and sufficient contact information.

Recommend you keep copies of everything for your personal records. (Things do get lost sometimes). Keep in mind, there will not be a look back under Procopio v Wilkie decision, that will be forthcoming in the HR 299 bill once it is passed by Congress and signed into law. Reopen your claim, if not already open, to obtain the earliest effective date of claim.

For further questions/submission see your CVSO/VSO/NSO/VSR.

If you or your representative has further questions, call Ed Ball, CVSO, Ret. 937-710-5377 or text.

Ed Ball, RMC(SW), USN, Ret. CVSO Shelby Co., Ohio Ret.
Military Veterans Advocacy Inc., Deputy COS of Research
Sidney, Ohio
(937) 710-5377

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