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Veterans Health Care

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.

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

Integrated Electronic Health Record System

Secretary Panetta of the Department of Defense and Secretary Shinseki of the Department of Veterans Affairs met on February 5, 2013, their 9th meeting in the last 18 months. They again discussed their commitment to have both departments’ partner in an integrated electronic health record system.

Instead of merely expressing their mutual desire to create a shared electronic health record system, Secretary Shinseki confirmed the following:

“Today’s meeting was about how to get there and, in the short term, we’ve agreed to improve data interoperability to that integrated electronic health record before the end of this year, by standardizing health care data no later than December 2013, creating health data authoritative source no later than September of 2013, accelerating the exchange of real-time data between V.A. and DOD no later than December of 2013, and allowing V.A. and DOD patients to download their medical records, what we call our Blue Button Initiative, no later than May of 2013, and, finally, upgrading the graphical user interface, this thing we call the GUI, to display the new standardized V.A. and DOD health care data no later than December of 2013, all of this focused on an initial operating capability in 2014.”

Whether the target dates will be met is unknown, but the fact that they are taking increased steps toward the creation of a seamless, single integrated electronic health record should be applauded. Bringing together two large bureaucracies on such a large task is monumental. Both Secretary Panetta and Shinseki should be commended for their efforts, and service members and veterans should look forward to the day where medical professionals will have access to all of the patients’ medical records. This will in turn, hopefully, lead to better continued medical care and quicker access to important records.

Additionally, an integrated electronic health record system will also assist with the processing of veterans benefits claims. Often, the adjudication of claims is slowed because VA needs to search for the service medical records. However, once the shared electronic system is up and running, VA will have access to all of the service medical records at the beginning of the claims process.

VA releases new update to eBenefits website

In October 2009, the Department of Veterans Affairs, in conjunction with the Department of Defense, launched a web portal that provides resources and self-service capabilities to Veterans, Servicemembers, and their families. It provides the ability to research, access and manage their VA and military benefits and personal information. The site is intended to help achieve Secretary Shinseki’s goal of eliminating the backlog and increasing decision accuracy.

Veterans and Servicemembers can access the site at www.ebenefits.va.gov where they will be guided through the registration process to obtain a premier account. With a premier account, veterans can apply for benefits, download their DD 214, and even check the status of compensation and pension claims.

On July 1, VA introduced its latest quarterly release. The new release streamlines the login process for several VA websites, allowing veterans to access their eBenefits, myHealtheVet, and VA for Vets information without signing in to multiple sites. With this new release, there are now 46 self-service features available through the site. Servicemembers and Veterans can download copies of their official VA and military correspondence, including service verification, benefits verification letters, military records, and VA home loan certificates of eligibility. They can also access Post-9/11 GI Bill enrollment status, VA payment history, and DoD TRICARE health insurance status.
The new release also includes access to a new Career Center page. The Career Center includes self-assessment tools and a resume builder, as well as a “translator” that relates military expertise to civiliam work skills. Through the Career Center, Veterans with access to the VA Veteran hiring site, “VA for Vets,” a VA program aimed at retaining and recruiting veterans.

Link Between Kidney Cancer and Agent Orange Exposure

Even if a particular condition is not on VA’s “presumptive list” as a condition caused by Agent Orange exposure, a veteran can present medical evidence to show that his or her individual condition is “as likely as not” related to that exposure.

A new VA study suggests a link between Agent Orange exposure and kidney cancer, a condition that is not on VA’s “presumptive list.” While this is a limited study, this type of evidence may be helpful in establishing that this exposure is “as likely as not” related to kidney cancer, and can provide support for an opinion by your doctor that the two are related.

For more about the study, see http://health.usnews.com/health-news/family-health/cancer/articles/2011/05/14/agent-orange-linked-to-kidney-cancer-study

VA to reopen Gulf War veterans’ files

Many veterans who served in Operations Desert Shield and Desert Storm are suffering from a range of physical disabilities, chronic ailments, and unexplained illnesses which may be due to an “undiagnosed illness.” Thousands of veterans who served in the Gulf War have come down with a pattern of symptoms that include rashes, joint and muscle pain, sleep issues, and gastrointestinal problems. However the cause of these problems remains unclear.

What is clear is that many Gulf War veterans are suffering from very real physical problems, and they are concerned along with their families about the long and short term consequences of these health problems. Many of these veterans suffering from what’s commonly called “Gulf War illness” have turned to the Department of Veterans Affairs (“VA”) for assistance. Congress has recognized, however, that “many ill Gulf veterans report having been told when they sought medical treatment that their ailments were ‘all in their heads.’” Report of the Special Investigation Unit of Gulf War Illness, 105th Congress. See http://www1.va.gov/rac-gwvi/docs/USSenate_ReportoftheSIUonGulfWarIllnesses_ReportNo105-39PartI_1998.pdf

The Washington Post has recently reported that in an effort to change this attitude on the part of VA, Secretary of Veterans Affairs, Eric K. Shinseki, has confirmed that VA will be re-examining the disability claims of what could be thousands of Gulf War veterans suffering from ailments. VA does not have an estimate of the number of veterans who may be affected, but it could be in the thousands. VA also plans to improve training for medical staff working with Gulf War veterans and a review of “Gulf War illness” regulations to ensure that veterans receive the compensation they are entitled to by law.

VA Disability Rating Chart.

One of the most common complaints we hear is that it appears that VA took away part of a veteran’s service connected disability compensation benefits when it granted an award. That is VA awarded an increased disability rating, but the overall compensation did not change, or the disability ratings assigned,  do not “add up” correctly. So it appears VA granted more benefits with one hand, but took away all or part of them with the other.

This normally occurs when VA awards a veteran a compensable (greater than 0%) disability rating for two or more disabilities. For example, a veteran may be awarded compensation at the 60% rate for one disability and the 50% rate for another disability. Simple math dictates that the veteran is entitled to a 110% disability rating. However, VA did not award a 110% rating; rather, it awarded an 80% disability rating, which appears to be a 30% reduction.

Congress permits VA to award disability ratings from 10% to 100%, in 10% increments, for a “schedular” disability rating. No award can be greater than 100% on a schedular basis. To know if a disability has been rated as “schedular,” – that is, based on VA’s Schedule of Rating Disabilities – there usually is a four or eight digit code numeric and a percentage assigned to the disability within the rating decision. (VA may assign extraschedular ratings or special monthly compensation, which are benefits generally beyond those permitted by the Schedule, but these benefits are outside the scope of this post.)

Because Congress does not allow disability ratings greater than 100%, VA cannot assign a higher disability rating. In other words, this is the upper limit of what VA can award on a schedular basis. When a veteran carries a 100% rating, he or she is considered totally disabled; the law uses the phrase “a total rating” to describe a 100% disability rating. Regardless of the number of disabilities or how great the aggregate disability ratings, no veteran may be assigned a disability rating greater than 100% or be more disabled than “total” for VA rating purposes.

The “110% disabled” veteran may then ask why VA did not simply award him 100% disability, since the ratings show him to be more than 100% disabled? VA uses a somewhat complicated formula to determine how each of these disabilities affects the veteran, and that formula is what is responsible for “VA math” – that is, the apparent reduction in the overall disability rating.

Disabled veterans, of course, may have multiple disabilities. Independently rated, the sum of each disability rating is often larger than what VA actually awards. This is so because VA uses the Combined Ratings Table at 38 C.F.R. § 4.25 to calculate how various disability ratings are combined into an award. According to § 4.25, VA considers the effects of the most disabling condition to the least disabling condition on the veteran.

This is how it works, for example: If a veteran carries a 60% disability rating, he or she is 40% efficient (non-disabled). Stated another way, this veteran retains 40% of the ability to work. If that same veteran also carries an additional separate 30% disability rating, of the 40% of his or her original efficiency that previously remained, he or she lost 30% of that 40% (that is, he or she retains only 70% of that 40%). This leaves the veteran only 28% efficient, or 72% disabled.

It may be easier to think of it this way: Presume you have a 10 ounce glass of water, and you pour out 60% of that water. What is left is 4 ounces, or 40% of the water. Of that water that remains, you pour out another 30%. That is, only 70% of the 4 ounces remains. There is now only 2.8 ounces, or 28%, of the water that was in the full 10 ounce glass; 7.2 ounces, or 72%, of the water is now gone.

Analogous to the glass of water is a veteran’s disabilities. In this scenario, ordinary math would result in a 90% disability rating, but when the ratings are combined using the formula in § 4.25, the veteran is considered 72% disabled.

Because Congress only authorized disability ratings in 10% increments, VA rounds the final calculation to the nearest 10%, rounding the end number of 1-4 down and of 5-9 up. Therefore, VA will award our veteran a 70% disability rating.

The same considerations apply for the “110% disabled” veteran as those who have ratings of less than 100%. Using VA’s combined ratings formula, the 60% and 50% disability ratings combine to create an 80% disability rating. If the veteran is service connected for another disability, then that disability will be factored into the overall award. In the alternative, had the veteran already obtained a 100% rating, VA would ignore the additional award out of necessity.

Because of “VA math,” not every award will result in additional compensation. Say VA awards this same veteran, who has an 80% disability rating, an additional 20% disability rating for another disability. The overall compensation award would remain the same! VA takes the 80% rating and factors the 20% additional disability onto that, resulting in an 82% rating, which rounds down to 80%. Therefore, it appears that VA ignored the new 20% award! It did not; that is just the way VA math works.

The Combined Ratings Table can be found here: http://edocket.access.gpo.gov/cfr_2005/julqtr/pdf/38cfr4.25.pdf

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