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Veterans Benefit Legislation

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.

Changes at VA do not bode well for claims handling

All the media and congressional attention drawn to the VA lately as a result of the medical center scandal, beginning with Phoenix and spreading, as well as the resignation of long-time Secretary Eric K. Shinseki, raise the reasonable question of what effect all of this will likely have on claims processing at the agency. Unfortunately, the indications are not very positive.

In the past, when Congress has focused attention on the agency, it has resulted in VA adopting programs to expedite claims backlog clearance. The problem with these programs is that they usually involve short-term actions, i.e. incentives for raters to clear cases by some arbitrary deadline, in exchange for bonuses, etc. The shortest path to getting a claim off of one’s desk is to deny it. That requires merely drafting some language for a rating decision, compared with the significantly greater effort required to make sure all evidence has been gathered and notices issued under the duty to assist, and then to adjudicate the claim carefully. When the pressure is on VA employees to clear away claims, the focus is generally on speed, not accuracy.

Congress has at least once exerted a positive effect on the agency, when it created judicial review and thus eliminated the isolation in which VA had so long adjudicated claims as it saw fit. The system is far from perfect, but it is a substantial improvement over the old system, in which veterans had no recourse when they were denied except to start all over again. But, alas, the energy in Congress currently seems to be more for making it appear that it is doing something rather than any true reform. The forcing of Gen. Shinseki’s resignation simply created a power vacuum that will likely result in less permanent improvement than more.

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?

2013 Disability Compensation Rates

VA’s disability compensation rates for 2013 include a 1.7 cost of living increase. You can see the 2013 table here – http://benefits.va.gov/COMPENSATION/resources_comp01.asp

One of the issues that is currently being discussed in the Senate Veterans’ Affairs Committee is the impact of the proposal for a “chained CPI” index to be used in calculating benefits. This is likely to result in a cut in benefits for those receiving VA disability, as well as for Social Security recipients. Veterans’ organizations have testified recently before joint sessions on the Senate and the House Veterans’s Affairs committees on the impact of this proposal, and Senate Committee Chairman Bernie Saunders has indicated concern about this proposal.

Press releases about the testimony of veterans’ organizations can be found here:
http://www.veterans.senate.gov/

The Department of Veterans Affairs Advisory Committee

On June 4, 2012, the Department of Veterans Affairs announced that its Advisory Committee on Disability Compensation will hold a meeting, open to the public, on June 25-26, 2012, at the St. Regis Hotel, 923 16th and K streets, NW, Washington, D.C.

The Committee advises the Secretary of Veterans Affairs on the maintenance and periodic readjustment of the VA Schedule for Rating Disabilities. The Committee assembles and reviews information relating to the nature and character of disabilities arising during service in the Armed Forces, provides an ongoing assessment of the effectiveness of the rating schedule, and gives advice on the most appropriate means of responding to the needs of Veterans relating to disability compensation.

The purpose of the meeting is for the Committee to receive briefings on issues relating to compensation for Veterans with service-connected disabilities. Public comments will be allowed in the afternoon and will be limited to three minutes each. Individuals wishing to make oral statements before the Committee will be accommodated on a first-come, first-served basis.

Any member of the public wishing to attend the meeting or seeking additional information should contact Robert Watkins, Designated Federal Officer, Department of Veterans Affairs at (202) 461-9214 or Robert.Watkins2@va.gov.

New judges for the Court of Appeals for Veterans Claims

On May 24, 2012, the Senate confirmed two new judges for the Court of Appeals for Veterans Claims. The Court has three vacancies and the addition of two new judges to fill two of those vacancies will be a welcome development.

The two new judges are Margaret Bartley and Coral Wong Pietsch.

Judge Bartley was previously senior staff attorney at the National Veterans Legal Services Program (NVLSP) and also Director of Outreach and Education for the
Veterans Consortium Pro Bono Program, where she served since 2005. She also served as Editor of The Veterans Advocate® where she had previously worked as Assistant Editor and contributing writer. She represented veterans and their dependents and survivors before the CAVC and the Board of Veterans’ Appeals from 1995. Following law school, she served as a judicial law clerk for the Honorable Jonathan R.Steinberg, formerly of the CAVC. She holds a B.A. from Pennsylvania State University and a J.D. from American University Washington College of Law.

Judge Pietsch retired from the Army in 2007 as a brigadier general after having served inthe Judge Advocate General Corps since 1974. Since her retirement, she has been living in Hawaii, where she has worked as a civilian attorney for the Army. She has also served on the Hawaii Civil Rights Commission. She was the first woman general in the 228-year history of the Army’s Judge Advocate General’s Corps and the first Asian-American woman to hold the rank of brigadier general in the Army, promoted to brigadier general while a member of the U.S. Army Reserve. She holds a B.A. from the College of St. Teresa, an M.A. from Marquette University, and a J.D. from the Catholic University of America.

VETERANS’ ACCESS TO CHIROPRACTICE CARE

On June 6, 2011, Sen. Richard Blumenthal (D-Conn.) introduced a bill which specifically requires VA to have a doctor of chiropractic staff at all of its major facilities by 2014. The bill was co-sponsored by Sen. Charles Grassley (R-IA), Sen. Thomas Harkin (D-IA), Sen. Jerry Moran (R-KS), Sen. Jon Tester (D-MT), and Sen. Sheldon Whitehouse (D-RI).

Currently, chiropractic care is only available at a few VA facilities across the country, and many major metropolitan areas are currently without doctors of chiropractic care. If enacted this legislation would presumably allow all veterans to have access to chiropractic care at any VA facility and would also allow VA to have more treatment providers on hand to assist veterans that suffer from musculoskeletal disabilities. This could potentially increase the number of veterans who seek treatment from a chiropractor and possibly reduce the length of time veterans with musculoskeletal disabilities wait for treatment.

Without this bill, further expansion of chiropractic care to VA facilities would be on a case-by-case basis and would probably experience significant delays.

The text of the legislation may be found at http://www.opencongress.org/bill/112-s1147/text.

Increase VA Compensation Rates Automatically

On May 5, 2011, a bill was introduced in the U.S. Senate to provide a cost-of-living adjustment in the benefits paid to those receiving disability compensation, compensation for dependents, clothing allowances, dependency and indemnity compensation benefits, and dependency and indemnity compensation benefits for children.

U.S. Senator Patty Murray of Washington, the chairperson of the Senate Committee on Veterans’ Affairs, and every member of the Committee co-sponsored the legislation.

If enacted, this legislation would not establish a set amount paid. Rather, the amount paid would be increased based on increases in the Consumer Price Index, which is the leading indicator of cost of living in America. That is, if the cost of living in America increases by 3% then VA compensation benefits will be increased by 3% automatically. The payment rates would be calculated yearly, rounded down to the nearest whole dollar. Any increases in compensation would be based on the rates in effect on November 30, 2011.

The bill would remove from the political process adjustments in compensation paid to veterans and their dependents and guarantee an adjustment in compensation that keeps pace with the cost of living.

The text of the legislation may be found at http://thomas.loc.gov/cgi-bin/query/z?c112:S.894: .

VETERANS BENEFIT PROGRAMS IMPROVEMENT

In late May 2010, VA Secretary Eric Shinseki prepared a letter to the leaders of the House and Senate requesting that his draft legislation entitled “Veterans Benefit Programs Improvement Act of 2010” be considered and enacted. The purpose of the draft bill is to improve (1) VA’s compensation and pension programs, (2) the timeliness and efficiency of VA’s adjudication of claims and appeals, (3) VA’s loan guaranty system, (4) vocational rehabilitation and education benefits, and (5) Veterans Group Life Insurance participants. Details of the particulars with respect to the suggested changes and reasons for them can be viewed at: http://www.vawatchdog.org/
While it is clear that many of the proposed changes appear good for veterans, there are several items that have surfaced that may negatively impact the legal representation of veterans.
Under Title II, Section 206, which concerns decisions of the Board of Veterans’ Appeals, the legal standard of what the Board must include in its decisions may change. VA is concerned that more than half of the claims appealed to the Veterans Court result in a remand back to the Board due to an inadequate statement of reasons or bases. The comments to the proposed change note, among others, that while some remands are necessary, many remands based on reasons or bases do not benefit the claimant. Therefore, changing the statutory language from reasons or bases to “a plausible statement of the reasons for the Board’s ultimate findings of fact and conclusions of law” would reduce the number of remands.
Under Title II, Section 207, which addresses the definition of prevailing party status for purposes of entitlement to Equal Access to Justice Act, i.e., reimbursement of attorney fees, the proposed language is alarming. If the language is adopted, attorneys who represent veterans before the United States Court of Appeals for Veterans Claims would only be eligible for reimbursement of attorney fees if, after securing a remand or reversal at the appellate level, the veteran ultimately is awarded a monetary or other benefit at the administrative level. The language further allows the Court and the Secretary to prescribe rules that would allow the Court to retain control over all remands, and only upon a showing that the veteran was awarded benefits, could the attorney be entitled to reimbursement of fees.
If either of these proposed changes become law, it is likely to negatively impact the number of attorneys willing to represent veterans at the court level. If attorneys know that the chances of recovering attorney fees is limited and that it will be that much more difficult to secure remands, the Veterans Court will likely see many more unrepresented claimants.

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