Representing Veterans and Dependents Before the VA Accreditation CLE: Basics, Pension, Ethics and Arellano v. McDonough Case

Nancy Morgan
Sarajane (Sally) Stenton
Kian Hudson
Thomas J. Kniffen
Nancy Morgan | Finkelstein and Partners
Sarajane (Sally) Stenton | Law Offices of Robert A. Ebberup
Kian Hudson | Barnes & Thornburg LLP
Thomas J. Kniffen | Law Office of Thomas J. Kniffen
Re-Broadcast: October 18, 2022

$245.00 4 hour CLE

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Program Summary

Session I – The Basics: What you need to know to represent Veterans before the Veterans Administration – Nancy Morgan

This program will offer attorneys an opportunity to help Veterans that have been denied benefits for service-connected disabilities. This is not only an opportunity to make a difference but could offer an expansion of your current practice.

Key topics to be discussed:

  • Attorney representation before VA
  • Claims procedures, including details about the Appeals Modernization Act (AMA)
  • Basic eligibility for VA benefits: definition of a Veteran
  • Right to appeal and steps for appealing an unfavorable decision
  • Disability compensation for Service-Connected Disabilities (38 U.S.C. Chapter 11)
  • Presumptions and how they connect a disability
  • Effective dates and “back pay”
  • Dependency and Indemnity (DIC) compensation for family members (38 U.S.C. Chapter 13)
  • Damages for injury or death caused by VA health care (1151 claim)

Session II – VA Pension and Discharge Upgrade – Lt Col (Ret) Sarajane (Sally) Stenton

This CLE will cover three topics. First, who is a “veteran” for VA disability compensation and pension (C&P) benefits purposes? This would include but is not limited to the character of discharge (COD), the reason for discharge, length of service, type of service, and/or periods of service. Second, if a person is not a “veteran” for C&P benefit purposes because of their COD and/or reason for discharge can the COD be upgraded and/or the reason changed to make the person a “veteran” for VA C&P benefit purposes. Finally, what is the difference between VA disability compensation and VA pension? Who is eligible for a VA pension? If a veteran is eligible for both which, should they take and why.

Key topics to be discussed:

  • Definition of veteran – statutory, case law, and VA
  • Types of discharges – Administrative, punitive, uncharacterized
  • Reasons for discharge barring benefits – statutory vs regulatory
  • Length of service requirements (barring injury or illness) pre and post 1980
  • Type of service – Active Duty vs Reserve vs National Guard
  • Multiple periods of service with different CODs and effects on C&P benefits
  • Correction to the DD 214/separation document
  • Board for Correction of Military Records
  • Discharge Review Board
  • Court
  • VA Pension – Only for Non-Service-Connected disabilities
  • Income and net worth-based program
  • Veterans and dependents are eligible
  • If a Veteran is eligible for both Comp and Pen deciding which to take will depend on multiple factors

Session III – What the Cert. Grant in Arellano v. McDonough Might Mean for Veterans’ Benefits Claims – Kian Hudson

On February 22, 2022, the Supreme Court agreed to hear Arellano v. McDonough, which raises an important question concerning the veteran’s benefits system: Can the deadline for seeking retroactive benefits for a military-service-connected disability be equitably tolled for a good cause? In this webinar we’ll discuss how this case arrived at the Court, what issues it implicates, and how it could affect veterans’ benefits claims—and claims invoking other federal statutes—going forward.

Arellano arises from a federal law that imposes a one-year deadline for a veteran to apply for disability benefits, starting from the time of discharge from military service. If this deadline is met, any benefits ultimately awarded are retroactive to the date of discharge; if not, benefits can still be awarded, but are retroactive only to the date the government receives the benefits application. In this case, the veteran filed his application many years after he was discharged, but contends that he is nevertheless entitled to retroactive benefits under the doctrine of equitable tolling: He argues that equitable tolling should apply to the statute’s one-year deadline when a service-caused disability prevents a veteran from filing a benefits application before the one-year deadline.

The Veterans Court rejected this argument, and the Federal Circuit split evenly on the question: Six judges concluded that equitable tolling does not apply (on the ground that the one-year deadline does not eliminate a veteran’s ability to collect benefits and is therefore not a true limitations statute), while another six concluded that equitable tolling is available in this context (on the ground that the deadline is a statute of limitations because it bars a claim for retroactive benefits unless it was filed within one year after discharge). The Supreme Court is now set to resolve this dispute, and its decision will affect tens of thousands of current and future military veterans. And because the arguments the Court will consider could apply to numerous other federal benefits statutes, its decision could have significance far beyond the veterans’ benefits context as well. Attend this seminar to learn more about this significant upcoming case.

Key topics to be discussed:

  • How Arellano arrived at the Court
  • What question the Court will decide
  • How the Court’s answer could affect veterans’ benefits claims, as well as other federal claims, going forward

Session IV – Ethically Representing Veterans and Dependents Before the VA and Court of Appeals for Veterans Claims – Thomas J. Kniffen

In this class, we’ll discuss legal ethics when representing veterans and dependents at the Department of Veterans Affairs, Board of Veterans Appeals, and the United States Court of Appeals for Veterans Claims [CAVC]. It will culminate with a checklist that practitioners can use and a step-by-step procedure that will cover applicable ABA ethics rules which specifically pertain to practice at the Agency [VA] level and CAVC.

Key topics to be discussed:

  • Identify issues that require a legal ethics analysis
  • Prepare a legal ethics analysis for each client, before and during representation
  • Reasonably predict and anticipate ethics issues that may occur during representation
  • Develop solutions for each possible ethics issue

Date:October 18, 2022

  • 1:00 pm – 5:30 pm Eastern
  • 12:00 pm – 4:30 pm Central
  • 11:00 am – 3:30 pm Mountain
  • 10:00 am – 2:30 pm Pacific

Closed-captioning available

Speakers

Nancy Morgan_myLawCLENancy Morgan | Finkelstein and Partners

Nancy Y. Morgan is a Partner and Director of Legal Operations at Finkelstein and Partners and Jacoby and Meyers. Nancy graduated from the Lois D. Brandeis School of Law at the University of Louisville in 1986 and joined Finkelstein & Partners in early 1987. Her practice has involved all facets of litigation. In the first five years with the firm, Nancy took over 45 verdicts. She continues to negotiate or litigate various types of personal injury cases for trial, in New York and New Jersey. Her goal is to hold the negligent party accountable for all harm caused.

Between 1991 – and 1996, Nancy accompanied her Active-Duty Army husband when he was transferred. out of state. During those five years, she worked at Colorado Interstate Gas Company (Coastal) in Colorado Springs, Colorado where she was a senior trial attorney. She then worked at Westinghouse in Pittsburgh, PA. where she developed the national litigation protocol for an asbestos product used in shipbuilding. Nancy’s practice area expertise spans personal injury law, but she also has a specialized focus on negligent supervision, lack of security, and ski cases. She achieved multiple large, confidential, six and seven-figure settlements. Nancy oversees the legal operations of the firm and is the founder of the Veterans’ Services Group. Additionally, she administers the firm’s mentoring and Continuing Legal Education (CLE) programs.

 

Sarajane (Sally) Stenton_myLawCLESarajane (Sally) Stenton | Law Offices of Robert A. Ebberup

Lt Col (Ret) Sarajane (Sally) Stenton is currently Of Counsel at the Law Offices of Robert A. Ebberup, specializing in Veteran’s Law. Also, formerly an adjunct law professor at Rutgers Law School and an expert legal commentator on Court TV. Sally graduated from Temple University Beasley School of Law with an LL.M. in Trial Advocacy in May 2017; winner of the Advocacy Award. She was the Chairwoman of the Military Law and Veterans Affairs section of the NJSBA, May 2019-May 2020.

Sally is a retired Air Force Judge Advocate General (JAG) with extensive experience and expertise in criminal law, courts-martial, and trial advocacy training, as well as International Law, serving as the legal advisor to Air Component Command for NATO, Izmir Turkey, and Operations Law. May 2010-May 2011, Lt Col Stenton was deployed to Kabul, Afghanistan where she was the Legal Advisor for the Afghan Air Force and Afghan National Army Staff Judge Advocates and the Staff Judge Advocate for the 438 Air Expeditionary Wing, Kabul, AFG. Before entering the Air Force she was an investigator for the Camden County Prosecutor’s Office for five years and was a member of the Army National Guard for four years. She initially served as an enlisted MP and later earned her commission as an officer. As an AF JAG Lt Col Stenton was a prosecutor, defense counsel, senior prosecutor, chief of military law, and a certified military judge. Lt Col Stenton was an adjunct professor of Family Law at Butler County Community College. She has extensive experience training both US Air Force Judge Advocates, on the Uniform Code of Military Justice and criminal law, as well as international Legal Advisors on their country’s military criminal justice systems.

Sally graduated from Rutgers Law School, Camden with a J.D. in 1990, and from West Chester State University with a B.S. in Criminal Justice in 1982. She is admitted to practice law before the Supreme Court of New Jersey, Supreme Court of Pennsylvania, United States Court of Appeals for the Armed Forces, Court of Appeals for Veterans’ Claim, and U.S. Supreme Court.

Her military decorations include Defense Meritorious Service Medal, Meritorious Service Medal (3 Oak Leaf Clusters), Joint Service Commendation Medal, Air Force Commendation Medal (3 Oak Leaf Clusters), Air Force Achievement Medal (1 Oak Leaf Cluster), Armed Forces Expeditionary Medal Afghanistan Campaign, Medal Global War on Terrorism Service Medal, Korean Defense Service Medal, Humanitarian Service Medal, Small Arms Expert Marksmanship Ribbon, NATO ISAF Medal.

 

Kian Hudson_myLawCLEKian Hudson | Barnes & Thornburg LLP

Kian assists clients throughout the litigation process. At the outset of cases, he works to spot issues and arguments other lawyers may miss, and as cases proceed, he provides clients with clear and compelling dispositive motions and appellate briefs – including, if necessary, cert-stage and merits-stage briefing before the U.S. Supreme Court.

Before joining the firm, Kian was deputy solicitor general for the state of Indiana, where he led the state’s efforts in scores of high-stakes and high-profile cases. In that role, he drafted nearly one hundred party and amicus briefs filed in the U.S. Supreme Court, multiple federal circuit courts, and the Indiana Supreme Court.

Kian has presented 10 oral arguments in the U.S. Courts of Appeals for the Fourth and Seventh Circuits and the Indiana Supreme Court, including a winning en banc Seventh Circuit argument that resulted in a significant decision rejecting a constitutional challenge to Indiana’s sex offender registry.

A prolific writer, Kian keeps his skills sharp by penning essays for a variety of non-legal publications, including National Affairs, The Bulwark, The Public Interest, Law & Liberty, FedSoc Blog, and The Federalist.

 

Thomas J. Kniffen_myLawCLEThomas J. Kniffen | Law Office of Thomas J. Kniffen

Over 20 years of experience in the area of VA Disability Compensation Benefits while working as an attorney for the United States Department of Veterans Affairs (VA) and in his private practice, Thomas J. Kniffen provides legal advocacy to Veterans and Dependents of Veterans who desire to obtain the maximum available VA Disability Compensation Benefits.

Focus upon Appeals from VA to Federal Courts.

Tom Kniffen is a veteran himself and includes in his representation an understanding of the needs and concerns of Veterans and their Dependents, who seek his counsel. During his service on active duty and in the reserves, Tom was deployed to the Persian Gulf, Iceland, and served in the Pentagon directly after 9/11.

Tom presented Continuing Legal Education (CLE) courses on the subject of Veterans Disability Law to various Bar Associations in New York.

Licensed to Practice in NY, PA, and before the United States Court of Appeals for Veterans Claims (CAVC) and the Federal Circuit. Fully Accredited by VA.

Agenda

Session I – The Basics: What you need to know to represent Veterans before the Veterans Administration | 1:00 pm – 2:40 pm

1. Attorney representation before VA | 1:00 pm – 1:10 pm
2. Claims procedures, including details about the Appeals Modernization Act (AMA) | 1:10 pm – 1:20 pm
3. Basic eligibility for VA benefits: definition of a Veteran | 1:20 pm – 1:30 pm
4. Right to appeal and steps for appealing an unfavorable decision | 1:30 pm – 1:40 pm
5. Disability compensation for Service-Connected Disabilities (38 U.S.C. Chapter 11) | 1:40 pm – 1:50 pm
6. Presumptions and how they connect a disability | 1:50 pm – 2:00 pm

Break | 2:00 pm – 2:10 pm

7. Effective dates and “back pay” | 2:10 pm – 2:20 pm
8. Dependency and indemnity (DIC) compensation for family members (38 U.S.C. Chapter 13) | 2:20 pm – 2:30 pm
9. Damages for injury or death caused by VA health care (1151 claim) | 2:30 pm – 2:40 pm

Session II – VA Pension and Discharge Upgrade | 2:40 pm – 3:50 pm

1. Definition of a veteran – statutory, case law, and VA | 2:40 pm – 2:42 pm
2. Types of discharges – Administrative, punitive, uncharacterized | 2:42 pm – 2:47 pm
3. Reasons for discharge barring benefits – statutory vs regulatory | 2:47 pm – 2:52 pm
4. Length of service requirements (barring injury or illness) pre and post-1980 | 2:52 pm – 2:57 pm
5. Type of service – Active Duty vs Reserve vs National Guard | 2:57 pm – 3:02 pm
6. Multiple periods of service with different CODs and effects on C&P benefits | 3:02 pm – 3:06 pm
7. Correction to the DD 214/separation document | 3:06 pm – 3:10 pm

Break | 3:10 pm – 3:20 pm

8. Board for Correction of Military Records | 3:20 pm – 3:25 pm
9. Discharge Review Board | 3:25 pm – 3:30 pm
10. Court | 3:30 pm – 3:35 pm
11. VA Pension – Only for Non-Service-Connected disabilities | 3:35 pm – 3:37 pm
12. Income and net worth-based program | 3:37 pm – 3:42 pm
13. Veterans and dependents are eligible | 3:42 pm – 3:46 pm
14. If a Veteran is eligible for both Comp and Pen deciding which to take will depend on multiple factors | 3:46 pm – 3:50 pm

Session III – What the Cert. Grant in Arellano v. McDonough Might Mean for Veterans’ Benefits Claims | 3:50 pm – 4:20 pm

1. How Arellano arrived at the Court | 3:50 pm – 4:00 pm
2. What question the Court will decide | 4:00 pm – 4:10 pm
3. How the Court’s answer could affect veterans’ benefits claims, as well as other federal claims, going forward | 4:10 pm – 4:20 pm

Break | 4:20 pm – 4:30 pm

Session IV – Ethically Representing Veterans and Dependents Before the VA and Court of Appeals for Veterans Claims | 4:30 pm – 5:30 pm

1. Identify issues that require a legal ethics analysis | 4:30 pm – 4:45 pm
2. Prepare a legal ethics analysis for each client, before and during representation | 4:45 pm – 5:00 pm
3. Reasonably predict and anticipate ethics issues that may occur during representation | 5:00 pm – 5:15 pm
4. Develop solutions for each possible ethics issue | 5:15 pm – 5:30 pm