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Veterans Benefit Claims

Free Veterans Benefits Legal Clinic at UVA School of Law

Free Veterans Benefits Legal Clinic to be held at UVA School of Law, 580 Massie Road, Charlottesville, VA

Thursday November 10, 2016, 1:00 to 7:00 p.m.

In collaboration with the UVA Maxine Platzer Lynn Women’s Center and the UVA School of Law, the attorneys with the Veterans Benefit Group of Goodman Allen Donnelly are hosting a Free Veterans Benefits Legal Clinic for Veterans in Central Virginia. The clinic will be held on Thursday, November 10, 2016, from 1:00 to 7:00 p.m. at the University of Virginia School of Law (580 Massie Road, Charlottesville, VA). Held during a week of activities dedicated to Veterans, the clinic offers Veterans the opportunity to meet with an attorney one-on-one to discuss questions about disability benefits from the Department of Veterans Affairs. Ms. Erin Ralston, an attorney with the Veterans Benefit Group, has worked with the UVA Women’s Center to organize and spread the word about this event. Ms. Ralston said, “The clinic gives veterans the unique opportunity to meet with an experienced attorney to address the challenges they face in the complicated VA disability benefits process. We’re proud to be able to help them overcome the hurdles they face.”

The clinic is open to all Veterans who pre-register. Those interested in attending may call (434) 817-2189 to pre-register for the event.

For more information on the Legal Clinic program at UVA Maxine Platzer Lynn Women’s center, visit http://womenscenter.virginia.edu/legal-clinic/

VA Healthcare Legislation

In the wake of the scandalous revelations of extraordinary wait times and falsification of records at VA Medical Centers, Congress is in the process of considering reform legislation.  The principal bill is the House of Representatives’ HR 4810, which would:

  • Direct the VA to enter into contracts for private care to be given to veterans who have waited longer than VA’s wait-time goals, or been notified that the necessary care is not available within those wait-times, or live more than 40 miles from the nearest VAMC (this authority would terminate after two years);
  • Allow veterans to receive care from private facilities through completion of the “episode of care,” but no longer than 60 days;
  • Allow care to be provided by, and reimbursement (at the highest of VA’s, Medicare’s, or Tricare’s rates) to be paid to, facilities with which VA does not contract, if the wait-time goals cannot be met by a facility with which VA has a contract.

The Senate passed its own bill, which is similar but lacks the reimbursement rate and 60-day limit provisions.  The House is insisting on the reimbursement provisions and the bills have been referred to conference committee.  As of July 1, there had been no resolution.

VA Must Ask Army Rather Than Assume What DD 214 is

Where a veteran had gone AWOL for a period and then reported back to his unit, his DD Form 214 reflected that he had “lost time” under 10 U.S.C. 972.  The Board assumed that this meant that the time could not be counted as active service to qualify him for VA benefits, and without this time the veteran lacked the 90 days necessary to support his pension award.  Section 972, however, provides an option for the service branch to compel a soldier to serve out his originally agreed time of service if he has absented himself without leave.  If the Army had exercised this option, the veteran would have “made good” the missed time and would have accumulated enough active time to qualify for benefits.  Instead, the Army discharged the soldier, later admitting that it had perhaps been less than fair in doing so.

In an appeal advanced by this Firm, the Court of Appeals for Veterans Claims ruled in a precedential decision (meaning that the decision establishes a rule of law and will be published) that the Board had erred in presuming the meaning of the terse reference on the DD Form 214.  The Court held that VA’s regulation, 38 C.F.R. 3.203, permits the VA to rely on service department documents if they clearly establish the necessary qualifying service, but where they do not, as in this case, VA has no choice but to inquire of the service department, i.e. the Army, as to the nature and character of the veteran’s service.

The result of the Court’s decision in this case was the restoration of erroneously-revoked pension benefits.  Should the VA attempt to revoke the pension again, it will then have to consult with the Army about the meaning of “lost time” in this context.  This will confront the Army with the interesting question of how time should be classified when the Army could have compelled further military service, which would have allowed the soldier to earn back the lost AWOL time, but the Army cuts off that opportunity by not compelling extra service.  Should the soldier be credited with what he could have earned back if the Army had not forestalled it?

Exposure to Dioxin from Contact with Aircraft

A recent study published in the journal Environmental Research  indicates that military personnel who flew in dioxin-contaminated aircraft used to spray Agent Orange in the Vietnam War (Operation Ranch Hand) may have been exposed to greater levels of dioxin than has previously been recognized.

The recent study indicates that the potential for exposure to personnel working in these aircraft after they were used for Operation Ranch Hand may be much greater than VA has acknowledged.  This also has implications for personnel who did not “set foot” in Vietnam, but who flew the planes used to spray Agent Orange and who were involved in cleaning and maintenance of the aircraft.

Senator Richard Burr (R-N.C) and Senator Jeff Berkely (D-Ore.) have asked VA to review whether benefits are inappropriately being denied to veterans who may have been exposed to Agent Orange contaminated aircraft.

Demonstrating contamination is further complicated by the fact that almost all of the aircraft, although showing contamination in the 1990s, have since been destroyed.

If you were exposed to aircraft used in spraying Agent Orange, you should be sure to reference this study when filing a claim for Agent Orange related conditions or disputing the denial of such claims.

5 New Illnesses Linked to Traumatic Brain Injuries

Effective January 16, 2014, VA has amended 38 C.F.R. § 3.310 to add five illnesses found to secondarily related to traumatic brain injuries.  A report by the National Academy of Sciences Institute of Medicine, entitled “Gulf War and Health, Volume 7: Long-Term Consequences of Traumatic Brain Injury,” found sufficient evidence to link the moderate to severe traumatic brain injuries with the following five illnesses:

  1. Parkinsonism, including Parkinson’s disease, following moderate or severe traumatic brain injury
  2. Unprovoked seizures, following moderate or severe traumatic brain injury
  3. Dementias of the following types: presenile dementia of the Alzheimer type, frontotemporal dementia, and dementia with Lewy bodies, if manifest within 15 years following moderate or severe traumatic brain injury
  4. Depression, if manifest within 3 years of moderate or severe traumatic brain injury, or within 12 months of mild traumatic brain injury
  5. Disease of hormone deficiency that results from hypothalamo-pituitary changes, if manifest within 12 months of moderate or severe traumatic brain injury.

 What does this mean for veterans who have service connected traumatic brain injuries?

Veterans who have already been granted entitlement to service connection for a moderate or severe traumatic brain injury, have been diagnosed with one of the five conditions noted above and fall within the guidelines provided, may file claims requesting entitlement to service connection for these conditions.  Absent clear evidence to the contrary, VA must grant entitlement to service connection for these five conditions, if the veteran falls within the guidelines noted above.  The benefit to veterans is an elimination of the need for case-specific development, such as not  having to obtain additional medical evidence linking the conditions to the veteran’s service connected moderate or severe traumatic brain injury.

Veterans with pending claims requesting entitlement to service connection for moderate to severe traumatic brain injuries can also file claims for the above noted conditions; however, the rule only provides for service connection of these conditions if the veteran has been granted entitlement to service connection for moderate or severe traumatic brain injuries.

Veterans who have been diagnosed with one of the five conditions noted above and have obtained service connection or are seeking service connection for a traumatic brain injury, but do not fall within the guidelines established by the rule, may still request entitlement to service connection for these conditions.  The final rule specifically states that “any claim that is not within the scope of this rule will be developed and decided under generally applicable procedures based on the evidence relating to that claim.”  Thus, veterans will likely need medical evidence specifically linking the condition to their service connected traumatic brain injury.

To see the final rule in its entirety, as well as commentary, please click on the link below :

http://www.regulations.gov/#!documentDetail;D=VA-2012-VBA-0029-0212

New Conditions in “Veterans and Agent Orange”

As many veterans are aware, there are a special set of regulations that provide for “presumptive service connection” for certain conditions if a veteran was exposed to Agent Orange.  This list is important because if a veteran does develop one of the listed condition, even 40 or 50 years after service, and they served on land in Vietnam during the war, service connection is very likely to be automatically granted.  The list is updated periodically based upon the latest scientific studies; in recent years, conditions have been added including ischemic heart disease and Type II Diabetes.  The addition of these diseases and others to the list have benefited thousands of veterans who are now service-connected and receiving VA benefits.

As mentioned, VA adds new conditions to the list every few years based on the latest research.  Congress has mandated that the National Academy of Sciences report every two years on this research and that the report assess how likely it is that other diseases should be added to the list.  The latest report, called Veterans and Agent Orange, Update 2012 was just released in December (despite the 2012 date, this report did not come out until late 2013).  The biggest news from the report is a finding that there is “limited and suggestive evidence” that strokes are related to exposure to Agent Orange.  Similar findings about Parkinson’s Disease led to that condition being added to the presumptive list several years ago.  The report does not find that the latest research supports there being a link between any other new condition and Agent Orange.  For example, the report finds that there is still insufficient evidence to currently show a link between Agent Orange and the development of certain leukemias, such as Acute Myeloid Leukemia (AML), Chronic Myelogenous Leukemia (CML) and Myelodysplastic Syndrome (MDS).

Under the Agent Orange Act of 1991, VA will now have to take the information from the study and can propose rules adding conditions, such as stroke, to the list of presumptive diseases.  The National Academy’s report is available to read on line or download for free: http://www.nap.edu/catalog.php?record_id=18395

Proposed Changes in the Regulations to File a Claim or Appeal

In an attempt to combat the backlog, the VA has recently proposed several changes to the claims process. While the VA’s goal is to decrease the amount of time it takes to process a claim, many view the proposed change as potentially harmful to Veterans.

Currently, to file a claim the Veteran need only send a letter to the VA which informs it of the desire to seek benefits for a condition. The Veteran is not required to use a specific form or identify the exact disability or condition. Additionally, if the Veteran wishes to appeal a decision, then he or she is able to write a letter to the VA to initiate an appeal. However, under the proposed regulations, a Veteran would be required to submit specific VA forms which include detailed information about the claim (including identifying the medical condition or stating the reason(s) why there was an error in the previous decision).

Veterans’ advocates have expressed concern over the proposed changes, as the changes will all but eliminate the VA’s obligation to consider a Veteran’s reasonably raised claim(s). Additionally, placing more requirements on the Veteran to fill out a specific form or provide detailed information makes the process more burdensome and less veteran-friendly. Particular concern has been raised for Veterans with mental health conditions or traumatic brain injuries as their conditions may put them at a disadvantage in determining which form to submit and what information to include. As there are a great number of Veterans who file a claim or appeal without representation, navigating the new process could prove difficult.

Currently, the proposed changes are being reviewed by the Senate Veterans’ Affairs Committee. Though the VA forms have been made available to the public for use, they are not required.

Did You Serve at Camp LeJeune?

Over the past several years, there has been considerable attention in the media to the past contamination of the water supply at Camp Lejeune. From 1953 to 1987, the water supply was contaminated with TCE, PCE, benzene, vinyl chloride and “other compounds.” For background information on the problem, see https://clnr.hqi.usmc.mil/clwater/Site/background_information.html

Based on legislation passed in 2012, VA now recognizes the medical problems caused by this water contamination. There are two components to the VA response.

First, VA health care benefits may be available. These are available for veterans and family members, who served on active duty or lived at Camp Lejeune for at least 30 days, from January 1, 1957 to December 31, 1987. The law noted 15 conditions which may be related to exposure to the contaminated water supply: esophageal cancer, breast cancer, kidney cancer, lung cancer, bladder cancer, multiple myeloma, renal toxicity, female infertility, miscarriage, sclerodoma, non-Hodgkins lymphoma, leukemia, myelodysplastic syndromes, hepatic steatosis, and neurobehavioral effects. If you or your family members lived at Camp Lejeune for 30 days during that period and currently suffers from any of these conditions, you may be eligible for health care benefits from VA. For VA’s fact sheet, see http://www.publichealth.va.gov/exposures/camp-lejeune/index.asp

Second, for veterans who served on active duty at Camp Lejeune, disability benefits may be available. To file a claim for disability benefits, you must
1. have been discharged under other than dishonorable conditions,
2. served at Camp Lejeune between August 1953 and December 1987, and
3. provide medical evidence that you have a current condition and a medical opinion that the condition is related to your exposure to the contaminated water.
For more information from VA, see http://www.benefits.va.gov/COMPENSATION/claims-postservice-exposures-camp_leguene_water.asp

VA is not specific as to what “current conditions,” it will consider – however, it is likely that any of the 15 conditions mentioned for health care benefits are good candidates. Unfortunately, VA takes the position that there is not sufficient evidence of a connection between any of these conditions and the exposure to the contaminants in the water supply to justify a presumption that they are related. Because of this, it will be important for you to obtain a medical opinion that states that your condition is related to the water contamination and fully explains the basis for the opinion.

Even if you submit your own medical opinion, VA is very likely to obtain an opinion from a VA physician regarding the connection between your condition and the water contamination. Because of this, it is especially important that the opinion you submit be clear and well supported.

VA beginning to make progress in reducing backlog

A recent Washington Post article shows signs of progress in VA’s efforts to reduce the more than 800,000 claim backlog. Director Thomas Murphy reports that “the number of pending cases has decreased by 74,000 over the past 45 days.” VA has pledged to complete all cases that have been pending for more than 125 days by the end of 2015. NBC News has reported that VA officials are indicating that St. Paul, Minnesota, Sioux Falls, South Dakota, and Providence, Rhode Island have already achieved this goal. This represents 3 of VA’s 56 Regional Offices. However, wait times at 12 VA Regional Offices still exceed 400 days on average.

While these reports may provide some hope to the thousands of veteran’s still waiting for their claims to be processed, the elimination of the backlog at the VA Regional Office level may be creating delays at the appeals level. In 2012, the Board of Veterans Appeals handled 49, 600 claims. In the first 6 months of this year, the Board has already received 37,000 claims. This number could reach 100,000 within the next 4 years. Already veteran’s are experiencing wait times in excess of 1,000 days from the time an appeal is submitted to the Regional Office to the time a decision is issued by the Board of Veteran’s Appeals. Efforts to reduce VA’s backlog at the local level does not currently include efforts to reduce the wait time for veterans who appeal Regional Office decisions, which is likely to continue growing as VA issues decisions on the more than 800,000 pending claims.

Board members hope that VA’s transition to electronic records will help to reduce this wait time. In the meantime, Laura Eskenazi, the principal deputy vice chairman of the Board of Veterans Appeals, reports that they have already begun hiring new attorneys to handle wave of new appeals expected as VA continues to process the backlogged claims.

To see the complete articles discussed above, please follow the links below:

http://www.washingtonpost.com/blogs/federal-eye/wp/2013/06/12/va-says-it-has-reached-tipping-point-in-backlog-struggle/?Post+generic=%3Ftid%3Dsm_twitter_washingtonpost

http://usnews.nbcnews.com/_news/2013/06/16/18955928-va-hits-backlog-goal-in-3-cities-hint-of-a-fix-or-mirage?lite

http://www.federalnewsradio.com/108/3363126/As-VA-works-to-eliminate-one-backlog-one-more-might-emerge

Why do VA claims take so long?

Virtually every veteran claimant has a similar frustration with the slow pace of the VA  claims process. The picture is of claims files stacked in the Winston-Salem, NC regional office, so many that the structural integrity of the building is in question, the weight thought to be too much for the floor structure to bear!

Winston-Salem has so many claims (over one million) that the RO staff there has reportedly been instructed to stop working on anything except emergency appeals (dying veterans) and focus until October 1 solely on looking at new claims that have never been looked at.

The story is the same all over the VA system. In Los Angeles, the backlog is so great that even if no new claims were filed beginning now, it would still take three years to clear the backlog. In Chicago 21,299 veterans awaited initial response to claims filed as of August 2012; average wait time for such response is 361 days; average time to initial decision is 1,528 days – that’s 4.2 years!

Between accumulated backlog of Vietnam era veterans and the newer claims coming in from the Gulf War, Iraq and Afghanistan, the system is backing up much faster than it can discharge claims. Apart from the sheer numbers of claims, the VA is hobbled by a slow antiquated system of paper files. Because the paper claims file has to be used to do most anything on the claim, only one thing can be done at a time: if a VA examiner or the Court has the file for review, the RO will not be doing anything. VA is working on converting to an electronic system, but a quick look at the photo above suggests how enormous an undertaking such a conversion will be.

What can be done? By the agency, not much, and what it could do, you probably don’t want it to do. In the past, when VA has started incentive programs to speed claims processing, what typically happened is that staffers trying to meet the incentives dealt with claims the quickest way – by denying them. This practice did nothing to improve the quality of claims evaluation. Only a major expenditure by Congress could begin to really address the problem, and it is no secret that the nation has enormous debt. Even if Congress were to appropriate the huge sum of money necessary to hire more staff and acquire additional space and equipment, it would take years to ramp up.

What can a veteran do? Again, the answer is not much. But there are a few things. First, don’t add to the problem. This does not mean not to file a claim, but if you do file a claim, make sure it is legitimate – don’t keep VA from processing worthwhile claims by submitting bogus claims that it also has to deal with.

Second, have your claim supported – the basics of claims are simple: to establish service connection there must be a (1) current disability that is (2) causally related to (3) some event in service; if you don’t have evidence proving all three, you’ll be denied. To get a higher rating you have to have evidence that your condition is worse than it is currently rated; you’ll likely need medical evidence to support that. VA is required to locate and obtain medical and service records, but you can request them yourself and get them more quickly.

Third, respond promptly to requests from VA, but do not re-submit the same material over and over. This just bulks up the claims file, making it more time-consuming and difficult for VA to find anything.

Fourth, don’t waste your time and VA’s time with rude or abusive phone calls or letters. While VA has weak links like any government bureaucracy, most VA employees are trying their best in extremely difficult circumstances. This doesn’t mean you have to put up quietly with foolishness, but when you call errors to VA’s attention, do it in crisp, clear language that is respectful, to the point, and helps VA see its error and rectify it.

Finally, while there are not many tools for pushing a system like this to move faster, the law does provide a method for remedying the most outrageous delays. There is a procedure that tries to get the Court to step in and order the agency to do something; it will only do so in cases of extreme delay, e.g. no activity at all for a year. Consult your legal representative about this.

UPDATE (11/5/2012, 15:19): In working with “The HERO Project” we found something our readers might be interested in.  It’s an interactive map tracking wait time for Veterans Disability Claims with some telling statistics.  Definitely worth the click:  Interactive Veterans Disability Claims Wait Time Map

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