Veterans Lawyer Francis Jackson: Captain American, Veteran’s Benefits, and CUE


Bert Martinez: Man, it’s good to have you here. Thank you so much for joining us today. Today we’re being joined by veterans lawyer Francis Jackson.

As you guys may know, Francis Jackson is a best-selling author as well as an attorney who specializes in disability law for those seeking veteran’s disability benefits,  as well as those who are seeking social security disability benefits. A founding partner of Jackson McNichol, Francis has been featured on NBC, CBS,  ABC, and Fox affiliates around the country. In 2017, Mr. Jackson was inducted into America’s  most trusted lawyers for his outstanding work in disability law.

For more information, I urge you to visit, Francis Jackson, welcome back. 

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Lawyer Francis Jackson: Thanks so much, Bert. It’s always a pleasure to be able to speak with you.

Bert Martinez: Well, I’m always excited to have you here. And a while back, I think I had thrown out the scenario if Captain America, for those who may not know, was trapped in the ice for like 20 years and then emerged, how much would his past due benefits be?

Lawyer Francis Jackson: Well, Burt, the thing is, VA benefits vary by level of disability and the rates change every year. So there’s no definitive answer.

But I went back to the old rates and was able to get back to 1980. So I took a 20-year period from 1980 to 1999. Of course, it depends on the disability percentage, but I assumed for our purposes that our veteran was entitled to be paid at the 100% rate.

And on that set of assumptions, the VA would owe him $388,842 when he emerged from his 20-year sleep in the ice. Well… So, you know, because the VA moves so slowly, we do get veterans awards like that several times a year. Last week, we got a client an award of $392,842 based on benefits going back to 2011 that they finally awarded him. You know, it varies so much from one case to another, but (3:05) the most we ever managed to get a veteran one award was from 1966 to 2018.

That award was almost $700,000. But that was based on a special rule, CUE. 

Bert Martinez: You said that was based on CUE. What is CUE?

Lawyer Francis Jackson: CUE is a special rule within the VA. CUE is an acronym for clear and unmistakable error.

And what that is, the VA has this regulation or rule that allows an old decision to be corrected. And when it is corrected, the corrected decision goes all the way back to the date of the original decision, no matter how far back that was. And that’s what we were able to do in this case I was just talking about.

And so to establish a valid CUE claim, the veteran has to show that either the correct facts as they were known at that time were not applied by the adjudicator, or that a statute or regulation of law basically applicable at that time was not correctly applied. And that’s a high burden. But you may remember I actually wrote about CUE in a book I jointly authored several years ago, Protect and Defend.

In fact, as I recall it, that’s how you and I met. You’d seen my book and got in touch with me, and I’ve been on your show ever since. 

Bert Martinez: That’s absolutely right. Good memory. Yes, absolutely.

So when something like CUE, and I’m not phrasing it correctly, but I guess what I’m trying to say is how often does CUE rear its ugly head?

Lawyer Francis Jackson: It’s not that often, Bert. I can count on my fingers the number of successful CUE claims we’ve made, and I’ve been doing this since 1991. So it’s rare.

But there are some other special legal rules.

Bert Martinez: But there are some other special legal rules. All right. So let’s talk about that.

What are the other special legal rules that veterans can use to collect pass-through benefits?

Lawyer Francis Jackson: Well, in addition to CUE, there’s a rule that says that if the VA was unable to get someone’s military records, and those records are relevant to getting the claim granted, then they can go back to the date of the original claim that was denied because they didn’t have the records. So for example, we have a fellow now who had made a claim back in, I think it’s 2008, if I remember right. And the VA turned it down saying that there was no record of his having mental health treatment in the service.

And we went round and round and back and forth with the records people, and this was remanded a couple of times by the court, and just, I mean, 2008 was a long time ago. But anyway, last year, we finally got military records showing that he in fact was at the military hospital at Valley Forge, Pennsylvania, and got him granted benefits. And we’re still working on getting them all the way back to 2008, but it’s based on this special rule where the military records that they didn’t have at the time in fact show that he was hospitalized during the service for a number of months, for basically what is often referred to as a nervous breakdown.

And so we’re going to get him benefits going back on that basis. And there are some others. There’s what’s called a pending unadjudicated claim, and that’s just fancy lawyer wording for a situation where a veteran files a claim and the VA doesn’t actually process it.

To give you an example, we had a case a few years ago where this gentleman died quite young, 30s, from a heart condition, and his wife filed a claim saying that she should be entitled to widow’s benefits. They’re technically known as dependency and indemnity compensation, but basically widow’s benefits, on the basis that his death was caused by a service-connected heart condition that came from his exposure to Agent Orange in Vietnam. And the VA had never actually dealt with that claim.

They acted on her related claim for funeral benefits and paid her funeral benefits on the basis that his death was not connected to service. And they tried to argue that that was sufficient to show that they had dealt with the notion that his claim was connected to service, and therefore, they shouldn’t have to pay. But ultimately, that one went all the way up to the Federal Circuit Court of Appeals, and in a very rare action, they ordered a direct reversal and an award of benefits instead of just a remand.

But that’s another of the special rules when the claim is filed, but never actually resolved by the VA. And the last one, well, not the last one, another one is an improper reduction by the VA of benefits that have already been awarded. So, for example, we had a gentleman we represented several years ago now where he was getting VA benefits.

VA got an updated report about his condition, and they decided that that report showed that his condition wasn’t as severe as it had been previously listed as, and they reduced his benefits. And he was at 70% and getting total disability based on individual unemployability, so he was being paid at the 100% rate. They reduced him back to 50%.

So, a significant difference in the amount. That’s a reduction by more than half, actually. So, what happened in that case is we took that up to the court, and we were able to show that the VA had not complied with the regulations about what they have to do to have a valid reduction.
They hadn’t given him notice and hadn’t complied with some other regulations. So, we were able to get the court to hold that the reduction was invalid from the date it was made, and VA had to go back and pay him that entire period at the 100% rate that he’d been getting and restore his 100%. And so, that’s one other rule, invalid reductions.
And the only other one is there’s a rule that if you submit new evidence within the one-year appeal period, the VA has to rule on that new evidence before any denial that they’ve made of the claim is final. And so, if you have a situation where you can show that the veteran submitted new evidence within the one-year period and the VA didn’t act on that, then you can go back to the date of that original action and get benefits for that period. So, those are kind of the special rules that allow veterans to get behind, if you will, the ordinary rule that benefits run from the date that you file the claim.

So, typically, for example, if I file a claim today and it’s granted, the benefits would start with the first day of the first full month following that claim, which in this case would be April 1st of this year. And if it takes the VA a while to get around to that, benefits would be back to that date when they were finally granted or potentially.

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Bert Martinez: Anyway, so, okay. So, if new evidence is introduced, the VA has one year to rule on that evidence? 

Lawyer Francis Jackson: When the VA makes a decision, there’s a one-year appeal period. And if you offer new evidence within that one-year appeal period, the VA is obligated to rule on the new evidence in order to make their decision final and valid. And if you don’t do that, the decision just sits there and you can appeal it essentially forever. 

Bert Martinez: All right. So, I want to back up to this pending adjudicated claim. So, from what I understand, it sounded like the widow made the claim and then the VA just sat on it?

Lawyer Francis Jackson: What happened is, Bert, the way this works, it gets a little technical, but let me try to make it as simple as I can. If you’re a widow and you file a claim for forfeits, there’s a form that you submit. And that form, unless you opt out of it, essentially allows an application for burial benefits or pension benefits and for dependency and indemnity based on compensation  benefits.

Those three pieces. What the VA did in this particular case is they only ruled on part of it. They dealt with the burial benefits and they denied pension benefits, but they didn’t deal with the compensation claim, which is the dependency and indemnity compensation for the widow based on an entitlement to compensation.

And so, she didn’t understand that she had any recourse there. But what happened is, several years later, the VA was ordered by the federal courts to do a special review under a case that was brought in California, a Nehmer case, class action. And the VA was ordered in that case to review a lot of these Agent Orange claims because they had mishandled them, frankly.

Anyway, when they did that review, they of course looked at this one because it raised the possibility of benefits based on Agent Orange from exposure and resulting in the heart condition and subsequent death. And so, when they reopened it, they tried to just give her benefits from that point forward. And she said, gee, I made this claim years ago.

You should have granted it back then. And the VA said, no, no, go away. And so, she came to us and we dug into it and said, you know, she made this claim way back then.

You should have granted it. And they resisted. They argued that the fact that they had denied death benefits, funeral benefits based on finding that the claim wasn’t service-connected was sufficient to also cover her claim that she was entitled to DIC benefits.

And we pointed out some legal rules that say, you have to actually tell people what claim you’re denying and that they hadn’t. And the court said, you know, you’re supposed to actually tell people what claim you’re denying and you didn’t. So, this claim is still there and you have to pay her back to this.

And so, that worked out. She ended up getting an award of about $250,000. And so, we were very happy that we were able to help her.

Bert Martinez: Man. And this is something, again, I don’t want to sound like I truly know what I’m talking about. But, you know, some of this stuff where the VA or some other large government institution kind of runs over somebody, right? And it precludes or denies somebody the due process,  right? They just, hey, here’s our decision.

But yet, like you pointed out, they didn’t follow their own rules or regulations. And they sometimes, without somebody like you stepping in, they lose out on all those benefits. I’m thinking how many widows out there have lost benefits,  have been denied benefits simply because they didn’t have somebody sticking up for them, right?

Lawyer Francis Jackson: I’m afraid that happens because these special rules that we were talking about are very technical.

And if you don’t have somebody who really understands how they work, it’s a real problem. In fact, you know, we actually went to some other lawyers about that one with the widow.  And they were saying, no, no, this doesn’t apply.

And I was convinced it did. And so, we kept taking it up. And ultimately, we won it.

But, you know, it’s very technical stuff sometimes. And so, if you don’t have somebody who really understands what’s going on, you know, a lot of folks who make claims on their own just get turned down because they  don’t really understand the rules. The good news is that the VA system is actually procedurally very forgiving.

And you can go back and fix these things a lot of the time. 

Bert Martinez: Well, okay. So, I guess without making it too complicated or legalese, how can veterans get the benefits from these special rules? What are the steps?

Lawyer Francis Jackson: Well, essentially, Bert, the short answer is that they have to get an experienced advocate.

There’s really, these rules are sufficiently arcane that it’s very unlikely that people are going to understand the potentially available rule and bring it to bear on their own. You know, I don’t want to say that the VA hides the ball because certainly they do try to be very upfront about the existence of these rules and that sort of thing.

But if you haven’t done a lot of these cases, it’s challenging to understand that this one falls within this specific exemption and you can get around the normal rules.

You know, even lawyers that do this stuff, if they don’t do it all the time, often don’t appreciate some of these exceptions. It’s just complicated.

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Bert Martinez: Well, one of the things that I’m gleaning from this, because these rules are complicated, it sounds like even the veteran department itself, the VA department, the people within the VA department don’t necessarily themselves know how these rules work. From that widow’s case, they had their point of view, you had your point of view, your point of view was correct. Because again, these rules get so complicated that they get misunderstood.

Lawyer Francis Jackson: That’s true Bert, And one thing that has really exacerbated things in the last few years, I don’t know if you’ve seen the, I’ve done a couple of interesting articles. There was one in the Washington Post that talked about  the impact of COVID and how the age group that had largely not returned to the workforce after COVID was older folks in their 60s.

And one of the things that happened with the VA is they lost a number of their most experienced people. These are all civil service folks. And so there’s a lot of incentive for them to stay into their 60s and even 70s in order to get the best possible pension results and so on.

So VA had a lot of older employees and when COVID came along, sadly, a number of them died, but a lot of others retired so that what happened was VA lost a lot of institutional memory, a lot of people who understood the finer points of how these rules worked and were comfortable applying them. And they’ve ended up hiring a lot of people in an effort to build up their workforce, but the loss is not only the number of people, but it’s the experience that those folks brought. So they’ve lost a lot of their most experienced people.

They’ve got a lot of new people who have essentially no experience, they’ve just been hired. And so when you get into areas where it’s complicated and you’re applying special exceptions and that sort of thing, it just results in mistakes. It just happens.

Bert Martinez:  Right. It’s just one of those things where, again, like a lot of government departments, they’re underfunded, understaffed, and it’s just too bad because as you and I have talked many times, this is not by any means a small department.

This is a very large, I think that the Department of Defense, I think it’s the number one budget item. And certainly the VA is somewhere in the top four or five of the budget items. It’s a huge thing.

It’s a huge department because it’s dealing with millions and millions of veterans.

Lawyer Francis Jackson: That’s right, Bert, It’s actually number two behind the Department of Defense.

Bert Martinez: So let me ask you this. When does a veteran need to hire a VA lawyer like yourself to represent him or her?

Lawyer Francis Jackson: Well, I think it’s when you get turned down. What I consistently tell people is, go ahead, make your claim with the VA.

They grant a reasonable percentage of these right off. There’s no downside to filing a claim. If you get turned down, then come and talk to us or to some other lawyer with a lot of experience in the VA and let us sort out whether you’ve got a meritorious claim.

And if we think it has merit, we’ll take it forward. And the thing is, Bert, there are, as I was explaining earlier, lots of favorable pieces or parts of the VA process. For example, if you have a car accident case and you go to court and you lose, it’s over.

But if you go to the VA and you lose, and even if you don’t get a lawyer in time to appeal, you can go back five years later and say, gee, I think the VA got that wrong. And you can file a new claim for that. You can’t do that in most kinds of legal situations.

In most situations, it’s one and done. But the VA, you can go back almost infinitely as long as you offer new evidence. And so, there are these special rules that are really quite favorable.

For example, in most cases, again, an auto accident case, which I’m sure a lot of our listeners are familiar with, the burden of proof is on the plaintiff. You have to prove by excuse me, by what’s called a preponderance of the evidence, meaning you’ve got to make the scales tilt in your favor. But in these VA cases, you only have to prove it’s as likely as not, which is a considerable difference, actually, in practice.

You just have to get to 50-50. So, you know, there are these favorable parts of the VA system. And as long as you have somebody who is skilled in what they’re doing, it’s possible to win most of these cases.

You know, we have upwards of 95% success rate in cases where the folks will stick with us through the process. The hardest part, a lot of people, is they just get discouraged about how long somebody stays. But, you know, if you can stick it out, then most of the time, you get the benefits.

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Bert Martinez: Yeah, that’s interesting. And so, again, I just want to clarify this, because it sounds like you’re saying that one of the benefits, not only do you have this appeal window that doesn’t seem to close, but so it doesn’t have like a normal statute of limitations, again, using the auto accident case. Most auto accident cases expire.

They have a statute of limitations of two years. But it sounds like with the VA, you don’t have that kind of rigid timeline. Would that be correct?

Lawyer Francis Jackson: That’s correct, Bert. You can essentially go back forever.

Bert Martinez: Man, that is a nice little thing.

And it should be like that, because, again, we’re talking about men and women. Most of these men and women are very young. And I think that’s a great thing that the VA has done that.

I hope that they continue to do that and don’t change it, because the reality is in some of these things like Ancient Orange and some of these other things that really sometimes will take 5, 10, 20 years to manifest. So they need that window.

Lawyer Francis Jackson: That’s right, Bert.

And that’s why Congress has done that. They’ve recognized that for a lot of  people, these conditions either don’t manifest at all or at least don’t become significantly disabling for many years, whether you’re talking about exposure to Ancient Orange, or you’re talking about exposure to contaminated water at Camp Lejeune, or you’re talking about exposure to the burn pits in Afghanistan. The effects of that stuff are far from instant.

It’s only years and years later that people tend to get affected. And it can be the same with things like PTSD. For a lot of folks with PTSD, they can kind of hang on for a while.

It’s really only as they get older and don’t have treatment that the symptoms

tend to to really get to the point where they seriously interfere, you know, in their in their relationships, whether it’s marriage or other relationships and their jobs and so on. So it it’s really important that, as you were saying, we have, this kind of window and Congress has recognized that.

Bert Martinez: That’s extraordinary. I’m grateful for those things. And again, just to point out, you’ve already said this, is that the VA isn’t out there purposely trying to screw over any veterans.

The reality is that they’re understaffed, number 1. Number 2, some of these laws as we’ve talked about today can be very complicated.

And they’re just doing the best they can with the system that they have. And I think from what I have seen, I would say 80% of the people that work for the VA care about their jobs and are doing the very best they can. And and and they’re not necessarily, again, trying to rip anybody off.

They just you know, people fall through the cracks. And if it wasn’t if it wasn’t for people there like yourself at veterans, a lot of our our, veterans wouldn’t, you know, wouldn’t get the benefits they deserve.

Lawyer Francis Jackson: Sadly, that’s true, Bert. If you if you look at the the VA’s own statistics, you’ll see that, the chances of success are are significantly higher if you’re represented by an attorney, any attorney, than if you do it on your own.

And, you know, that makes sense because, the attorneys, even even relatively inexperienced attorneys have a have the legal training and background to, to apply some of these things.

And, you know, more experienced people, obviously, have, more background to draw on. But, it’s, it is unfortunate that, now this was this was intended by congress to be a fairly simple, sort of paternalistic kind of system where people came in and showed that they had these, disabilities or injuries and and got their benefits.

And it’s proven much more complicated than that in actual practice.

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Bert Martinez: Yes. I do want to throw this out. You and I I think last time you were on the show or one of the things that we talked about were the I don’t want to call them the foreclosure benefits, that sounds weird, but if there is a veteran that is struggling with a foreclosure situation, again, the VA has a home loan representative that can help them delay or maybe even stop their foreclosures. Is that correct?

Lawyer Francis Jackson: That is true, Bert.

Bert Martinez: And for those listening, that phone number is 877-827-3702, and I’ll put that again in the show notes. The VA literally has 100 or if not 100, maybe 1,000 types of benefits because you’ve you’ve taught me so much. I mean, there there again, today, we talked about this pending adjudicated claim, this widow’s benefits. I know that there’s benefits for families. There’s benefits for college.

There’s there’s benefits for just the benefits are are a lot. And they’re probably I would say most VAs only maybe and you correct me please, I would imagine that because there are so many VA, so many benefits that a lot of our veterans are only what do you call it, accessing a portion of the benefits that that they actually could access, just they don’t know any better.

Lawyer Francis Jackson: That’s true, Bert. There there are lots of folks out there who, potentially could access, either some benefits because they’re not getting any, or additional benefits because they’re getting some, but not all. And it’s a it’s a, you know, it’s a challenge.

Although I I have to tell you that the the military is doing a much better job than it used to in terms of informing, folks coming out of the military about veterans benefits. And, my hat’s off to them for doing that.

Unfortunately, there’s still lots and lots of people out there that that didn’t get that kind of assistance, and, even some of the folks who who had that assistance still don’t recognize all the potential benefits. So it’s a it’s a constant challenge to to educate everybody as to what benefits they might be eligible for.

Bert Martinez: Yes. Alright. Well, listen. We’re out of time. I wanna thank you so much for stopping by. And again, for those individuals who wanna talk to an experienced veteran’s attorney, you can check them out at And, Francis, as always, thank you so much for stopping by.

Lawyer Francis Jackson: My pleasure, Bert. I always enjoy, the opportunity to talk with you about these issues and, get them out to your listeners.

Bert Martinez: Thank you so much. Good stuff there from veteran’s lawyer Francis Jackson, action Jackson as sometimes I like to refer him to.

But, you know, as you can tell, his team has a wealth of information that might be able to help you or your family at veterans It costs you nothing to share this information, so please share this information with everybody you know. Even if it’s a family that has nothing to do with the military, they might know somebody that might benefit from veterans

You know, our our our men and women, they’re they’re risking it all, and I think that they deserve to get every benefit that the government has promised to them.

Thank you for your support, and remember, You Were Created to Succeed!





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