Overview of Veterans’ Benefits February 27, 2008 Equip for Equality Disability Rights Consortium Presented by John F. Costello, Jr. Prof. Joseph R. Butler

Overview of Veterans’ Benefits

February 27, 2008 Equip for EqualityDisability Rights Consortium

Presented by John F. Costello, Jr. Prof. Joseph R. ButlerVeterans’ Rights Project Veterans Legal Support CenterLegal Assistance Foundation The John Marshall Law School(312) 347-8340 (312) 427-2737 ext. [email protected] [email protected]

Objective of Presentation

Provide an overview of veterans benefits; Create awareness of veterans’ need for legal

assistance; Allow issue-spotting and referral to highest and best

resource for assistance; and … Motivate you to answer the call for assistance from our

veterans.

INTRODUCTION Statistics on Veterans VA Benefits in General

Who Is a “Veteran”: Basic Eligibility Requirements Overview of Major Disability Benefits Programs

Service-Connected Disability Compensation Needs-Based Disability Pension

VA and SSA Interplay Benefits for Survivors Overview of Claims Process Attorney Fees

Resources for Assistance LAF’s Veterans’ Rights Project – Legal and Educational John Marshall Law School, Veterans Legal Support Clinic & Center – Legal and

Educational Illinois Attorney General, Veterans Rights Bureau – Educational Rehabilitation Institute of Chicago – TBI Screening

Q&A

Statistics on Veterans

Show of hands Veterans Family members of Veterans

Statistics on Veterans

Of the 25 million veterans currently alive, nearly three of every four served during a war or an official period of hostility. In Cook County there are over 250,000 veterans

About 1/4 of the nation's population -- approximately 70 million people -- are potentially eligible for VA benefits and services because they are veterans, family members or survivors of veterans

Between 1/4 to 1/3 of all homeless are veterans In Cook County there are an estimated 25,000 to

35,000 homeless veterans

Benefits in General

United States Department of Veterans Affairs (VA) benefits range from healthcare, compensation for service-connected disabilities, needs-based pensions, education, vocational training, home loan guarantees, life insurance, and burial and memorial benefits.

Certain VA benefits are also provided to eligible dependents and survivors of veterans.

Benefits in General

The VA benefits system is “paternalistic” In other words, it favor the veteran

Reason: service members do not receive workers compensation or disability insurance from the Department of Defense while in military service, and therefore, this system is designed with that in mind

Who Is a “Veteran”: Basic Eligibility Requirements

A “veteran” is defined as a “person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable” 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d).


Active duty requirement A “veteran” must have “active military, naval,

or air service,” includes, inter alia: Full-time service in Army, Navy, Marine Corp, Air

Force or Coast Guard Training, if disease or injury incurred or

aggravated in line of duty Guard or Reserve only if called to serve on

regular active duty


Character of discharge is important A “veteran” must have been “discharged or released therefrom under conditions

other than dishonorable” Military services generally have 5 types of discharges:

1. honorable discharge (HD)2. discharge under honorable conditions (UHC) or general discharge (GD)3. discharge under other than honorable conditions (UOTHC)4. Bad conduct discharge (BCD)5. Dishonorable discharge (DD) or dismissal (if officer),

Certain administrative discharges by the Department of Defense do not carry a characterization of service, and VA reviews on a case-by-case basis to determine if “other than dishonorable” “personality disorder” – pre-existing condition

Recent press stories of this practice Dishonorable, bad conduct discharges, or other conduct may operate as

“statutory bar” VA benefits Former servicemembers can seek a discharge upgrade from a Military Discharge

Review Board or the Board for Correction of Military Records “discharge upgrades”


Length of service requirement Before September 8, 1980, there was no

minimum length of service requirement to establish general eligibility for most VA benefits.

After September 8, 1980, a veteran must have served 24 months of active duty or “full period for which … called or ordered to active duty” to be eligible for VA benefits.


Wartime versus peacetime service The following are periods of wartime designated by Congress for

purposes of VA benefits: Indian Wars – January 1, 1817 – December 31, 1898 Spanish-American War – April 21, 1898 – July 4, 1902 Mexican Border War – May 9, 1916 – April 5, 1917 World War I – April 6, 1917 – November 1, 1918 World War II – December 7, 1941 – December 31, 1946 Korean Conflict – June 27, 1950 – January 31, 1955 Vietnam Era - August 5, 1964 (February 28, 1961 if “in-country”) – May 7,

1975 Persian Gulf War – August 2, 1990 – date to be determined NOTE: Congress has not enacted legislation that would make the periods

covering the invasions of Grenada (Operation Urgent Fury 1983) and Panama (Operation Just Cause 1989) “wartime” service.

Certain benefits (ex. needs-based pension) are available only to veterans that served during wartime

Overview of Major Disability Benefits Programs

Service-Connected Disability Compensation Disability compensation is a monetary benefit paid to veterans

who are disabled by an injury or disease that was incurred or aggravated during active service.

Needs-Based Pension Pension is a monetary support benefit paid to permanently and

totally disabled (not service-connected) veterans with low incomes who served during a defined period of war.

Prohibition Against Dual Receipt of VA Compensation and VA Pension Benefits On occasion, a veteran may be entitled to both compensation

and pension. The VA is prohibited from paying both benefits concurrently. 38 U.S.C. § 5304(a); 38 C.F.R. § 3.700. A veteran entitled to both must elect to receive one benefit or the other.

Service-Connected Disability Compensation

Service-connected disability compensation is available where disability claimed was either incurred or aggravated in the line of duty, not the result of willful misconduct, and the veteran’s discharge was other than dishonorable, 38 U.S.C. § 1110

The “in line of duty” requirement is very liberal Only a temporal connection to the period of service

beginning with induction and ending with discharge is required, 38 C.F.R. § 3.303(a) Example: A soldier that injures a knee while skiing on

leave in Breckenridge has just as much right to disability compensation as a soldier that injures knee jumping from helicopter into combat in Baghdad.


3 Requirements to Obtain :

1. medical diagnosis of current disability

2. evidence of in-service occurrence or aggravation of a disease or injury

3. link or nexus (usually medical evidence) between the in-service occurrence or aggravation of a disease or injury and the current disability


1. medical diagnosis of current disability Veterans can submit VA or private medical

records VA has a statutory “duty to assist” claimant to

obtain medical evidence by making “reasonable efforts,” 38 U.S.C. § 5103A, which include ordering an examination by a VA physician


2. in-service occurrence or aggravation VA places great weight on contents of military personnel

and medical records Unit histories Deck logs

VA is required to consider lay evidence Veterans own statements describing in detail circumstances of

injury or event Private medical records Buddy statements Newspaper articles Letters to family / friends Internet resources can be of tremendous value


2. in-service occurrence or aggravation Lay evidence may be enough when issue relates to observable

event (ex. statement of combat veteran concerning bullet wound), but if circumstances raise a medical issue then medical evidence is required (ex. “triggering event” for post traumatic stress disorder). See, e.g., Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992).

Relaxed evidentiary standards for combat veterans, 38 U.S.C. § 1154(b), requires VA to accept veteran’s lay statement if event: (1) occurred while “engaged in combat with the enemy;” (2) statement is “consistent with the circumstances” of such service; and (3) there is not “clear and convincing evidence to the contrary”


3. Evidence of Link or Nexus 5 ways to establish service connection

1. Direct service connection – medical evidence

2. Aggravation – medical evidence and presumption of soundness

3. Statutory Presumption

4. Secondarily service connected

5. Section 1151 and FTCA claims

VA must consider all 5 ways, Schroeder v. West, 212 F.3d 1265 (Fed Cir 2000)


Medical Evidence in General “competent medical evidence” must establish that “it is

as likely as not” that current disability resulted from disease, injury, or precipitating event during service. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. referred to as “benefit of the doubt” standard In other words, a 50% chance

“competent medical evidence” can come from Letter or statement of VA or private physician Evidence in veteran’s service medical records and treatment records Evidence in medical textbooks, treatises or journals

Medical evidence not required if nexus is presumed Chronic disability diagnosed in service, 38 C.F.R. § 3.309(a) Disability presumed to be service-connected is diagnosed within

presumptive period following service, 38 C.F.R. §§ 3.307(a); 3.309

Service-Connected Disability CompensationDirect

Delayed Direct Service-Connection An event in-service caused the veteran to suffer a disability or disease

many years later, 38 C.F.R. § 3.303(d) Hearing loss due to noise exposure Arthritis due to trauma PTSD due to XYZ

Chronicity, 38 C.F.R. § 3.309(a) If veteran was diagnosed with a chronic disability while in

service and currently suffers from the same chronic disability, then the VA assumes the connection. Arthritis – a/k/a - you try humping around a 100 pound rucksack Myelitis – spinal cord inflammation linked to exposure to wet or cold

Continuity of Symptomatology Shown through military or service medical records that condition

diagnosed or manifested during service, or demonstrating by medical opinion that in-service event caused current condition


Aggravation Veteran shows worsening of pre-existing condition due to

military service Must be more than the natural progression of a condition

Certain disabilities cannot be service-connected if the result of, for instance, “congenial or developmental defects” or “personality disorder and mental deficiency.” 38 C.F.R. §§ 3.303(c); 4.9; 4.127. However, veterans are presumed to be in “sound condition” at

induction to military service, unless otherwise noted in induction examination, 38 U.S.C. § 1111; 38 C.F.R. § § 3.304(a,b) Presumption of “sound condition” can be rebutted only by “clear and

unmistakable evidence” VA Gen. Coun. Prec. 3-03 (July 16, 2003)


Statutory Presumption Congress has determined that certain disabilities and conditions

are presumed to be related to military service Chronic diseases: manifested within defined period of time, 38

C.F.R. §§ 3.307(a)(3) and 3.309(a) Tropical Diseases: manifested within defined period of time, 38

C.F.R. § 3.309(b) Prisoners of War: manifested at any time, 38 C.F.R. § 3.309(c) Persian Gulf Veterans: manifestation of “undiagnosed disability,”

38 C.F.R. § 3.317(b) Radiation-Exposed Veterans: 38 C.F.R. §§ 3.309(d) and 3.311 Agent Orange: 38 C.F.R. §§ 3.309(e) and 3.313

In other words, these presumptions relieve a qualifying veteran with a qualifying condition from the obligation to show a nexus between service and the condition.


Secondary service-connection If a service-connected condition causes or

aggravates a second condition, then that second condition is treated as also service-connected, 38 C.F.R. § 3.310

Compensated just like original service-connected condition Examples: depression as a result of physical

impairment, hip condition as a result of knee condition, etc.


Section 1151 and FTCA Claims If disability or disease was caused by VA medical

treatment or vocational rehabilitation, then that disability or disease is treated “as if” connected to service, 38 U.S.C. § 1151 – legal fiction

Also potential for Federal Tort Claims Act (FTCA) cause of action, 28 U.S.C. §§ 1346(b), 2671-2680 Must file administrative claim with VA prior to filing suit in

U.S. district court, 28 U.S.C. § 2675(a) administrative claim must be filed within 2 years after claim

accrues, and U.S. district court lawsuit must be filed within 6 months of determination on administrative claim


Once a condition is found to be service-connected, a percentage of disability is assigned for compensation purposes. The diagnostic code (DC) for the condition and the evidence of symptomatology determine the exact percentage assigned. See 38 C.F.R. Part 4.

Description of Benefit Disabilities are rated on a percentage scale and monthly awards determined

according to assigned percentage. Percentages range from 10% to 100%, and monthly awards range from

$115 to $2,471 per month. CONTRAST with Social Security Administration – disabled or not

Veterans may be entitled to a 100% rating where veteran is unable to engage in substantially gainful occupation – termed total disability based on individual unemployability (TDIU or IU), 38 C.F.R. § 4.16

Veterans may be entitled to special monthly compensation amounts for certain severe disabilities. Examples:

Aid and Attendance Housebound

Needs-Based Disability Pension

5 Basic Eligibility Criteria1. Veteran must be discharged under other than dishonorable conditions2. Veteran must have served during a “war-time period” 3. Veteran must have limited income and net worth ~ “needs test”4. Veteran must be permanently and totally disabled

Need not be service-connected5. Disability cannot be the result of the veteran’s “willful misconduct,”

examples of which include substance addictions and venereal diseases. 38 C.F.R. § 3.1(n), 3.301(b).

However, exceptions exist if what would ordinarily be attributable to willful misconduct is secondary or caused by another service-connected disability. 38 C.F.R. § 3.301(c)(2),(3).

For example, lung cancer due to smoking might be covered if that substance addiction was deemed to be secondary to service-connected post traumatic stress disorder. Arguments have been made that the substance addiction was a form of “self medication.”

Needs-Based Disability Pension

Determining the Monthly Benefit “Needs Test” - veteran’s “countable income”

cannot exceed the Maximum Annual Pension Rate (MAPR)

Amount of MAPR varies depending on number of dependents and need for services 2007 MAPR for single veteran is $10,929

Monthly payment = (MAPR – countable income) / 12

VA and SSA Interplay

A veteran can receive Service-Connected Disability Compensation and SSDI concurrently – there is NO offset

However, a veteran cannot receive Needs-Based Disability Pension and SSI concurrently – there is an offset

Practice Pointer for Low Income Clients: VA pension rates are much more generous than SSI rates

Benefits for Survivors

Main Benefits Programs for Survivors: Dependency and Indemnity Compensation

Service-Connected Paid to dependents of veterans whose deaths were caused by service-

connected conditions, 38 U.S.C. § 1310, … or … Paid to dependents of veterans that received / were entitled to receive

disability compensation for a defined period of time prior to death, 38 U.S.C. § 1318(b)(1,2,3)

Death Pension Non-service Connected

Needs-based pension with eligibility criteria for survivors similar to that of the eligibility criteria for veterans disability pension – “wartime” service and low income

However, the MAPR for survivors is much lower than the maximum annual pension rate (MAPR) for veterans, and the MAPR for a surviving spouse is only $7,329

Burial and Memorial Benefits

Overview of Claims Process

Procedure on Claim for VA Benefits VA Regional Office (VARO)

58 VAROs in U.S. – at least one in each State plus DC, Puerto Rico and Phillipines For Illinois: Chicago VARO at 2122 W. Taylor (Damen & Taylor)

Board of Veterans’ Appeals (BVA) Timeline: substantive appeal must be filed within 60 days of the

mailing of the SOC or within 1 year from the date the VA mailed its decision, whichever is later

United States Court of Appeals for Veterans’ Claims (CAVC) Timeline: notice of appeal must be filed within 120 days after the

BVA mailed its decision United States Court of Appeal for the Federal Circuit United States Supreme Court

Overview of Claims Process

Overpayments Any time the VA determines that a monetary payment

made to a claimant is in excess of what should have been paid, a debt is created. Debts of this type are commonly referred to as overpayments. VA is aggressive in collecting debts.

2 methods to assist claimants facing overpayments: Dispute the existence or amount of the debt Request waiver of collection of the debt

Attorney Fees

Crippling lack of attorneys representing veterans…Why? Economic Disincentives…

History of VA regulation of attorney fees 1862 – 1988

attorneys could only charge $10 (at risk of imprisonment) 1988 – 2007

attorneys could not charge fee at initial administrative levels, but could charge “reasonable fee” for advocacy after BVA denial (after 2nd stage of administrative process)

Attorney Fees

Result… Crippling lack of attorneys represent veterans

Less that 100 coast-to-coast Veterans Service Organizations fill the gap and provide

assistance Disabled American Veterans, Amvets, American Legion,

Military Order of the Purple Heart, etc. About ½ of veterans seeks benefits from the VA pro se

Veterans with some kind of representation receive, on average, $6,225 more per year than unrepresented veterans

Attorneys can make a Tangible Impact

Attorney Fees

Effective June 20, 2007…Public Law 109-461 The Veterans Benefits, Health Care, and Information Technology Act of 2006, which provides that claimants may hire an attorney earlier in the claims process. Attorneys cannot charge fee at initial administrative level Attorneys can charge a “reasonable fee” – 20% is

presumptively proper –after Notice of Disagreement (NOD) is filed (after 1st stage of administrative process) repeal bill pending in House of Representatives?

Powerful lobby believes there is no need for attorney involvement

Proposed regulations for attorney accreditation (i.e., testing) pending…still awaiting final regulations

Legal Assistance Resources

Department of Veterans’ Affairs www.va.gov Illinois Department of Veterans’ Affairs

www.state.il.us/agency/dva Illinois Attorney General, Veterans’ Rights Bureau

www.illinoisattorneygeneral.gov/rights/veterans.html LAF Veterans’ Rights Project www.lafchicago.org Veterans Legal Support Center & Clinic, John Marshall Law

School (VLSC) www.jmls.edu/veterans National Veterans’ Legal Services Program (NVLSP)

www.nvlsp.org Publishers of Veterans’ Benefit Manual, which is a recommended

resource for advocates practicing in the area of veterans’ law. National Organization of Veterans’ Advocates (NOVA)

www.vetadvocates.com

LAF Veterans’ Rights ProjectThe Veterans’ Rights Project is the first legal aid clinic of its kind in Chicago and hopes to spur attorneys to answer the call for assistance from our veterans by:

Assisting veterans and their families with claims for benefits from the Department of Veterans Affairs

Conducting outreach to homeless veterans at area shelters Assisting veterans and their families with civil issues ranging from

reemployment rights to housing accommodations for disabled veterans, as well as represent service members and their families in enforcing numerous consumer protections provided by the Service Members Civil Relief Act and similar state statutes Uniformed Services Employment and Reemployment Rights Act (USERRA) Service Members Civil Relief Act (SCRA) Americans with Disabilities Act (ADA) Fair Housing Act Corresponding state laws

Conducting educational outreach to veterans at various VA clinics, community colleges, veterans groups in the area

The John Marshall Law School Veterans Legal Support Clinic VLSC is the nation’s first legal clinic at a law school dedicated

solely to assisting veterans with their benefit claims. VLSC consists of 2 aspects:

Law Clinic Attorney and Students represent veterans for VA benefit claims Veterans benefits course at JMLS

Veterans Center Manage a statewide network of pro bono attorneys in conjunction

with the Illinois Supreme Court Commission on Professionalism Educational programs Center of all veterans issues in Illinois

Illinois Attorney General Office, Veterans Rights Bureau

Veterans Public Advocacy Forum Veterans Hotline (800) 382-3000

Rehabilitation Institute of Chicago – TBI Screening Initiative

Illinois Warriors Assistance Program mandates head trauma screening for members of the

Illinois National Guard after their return and provide a confidential, 24-hour helpline for veterans suffering from post traumatic stress disorder (PTSD)

(866) 554-4927 Illinois veterans from all wars will also have access to the

TBI screening and the PTSD helpline.

For more details, please visit http://www.ric.org/aboutus/mediacenter/press/2008/012908.aspx

http://wwwb.illinois.gov/PressReleases/ShowPressRelease.cfm?SubjectID=19&RecNum=6561

Miscellaneous

Q&A

Documents

Overview of Veterans’ Benefits February 27, 2008 Equip for Equality Disability Rights Consortium Presented by John F. Costello, Jr. Prof. Joseph R. Butler