Veterans’ Benefits Overview 2007 Public Benefits Training Presented by John F. Costello, Jr. Legal Assistance Foundation of Metropolitan Chicago Veterans’

Veterans’ Benefits

Overview

2007 Public Benefits Training

Presented by John F. Costello, Jr.Legal Assistance Foundation of Metropolitan ChicagoVeterans’ Rights Project

INTRODUCTION

Benefits in General Who Is a “Veteran”: Basic Eligibility Requirements Statistics on Veterans Overview of Major Disability Benefits Programs

Service-Connected Disability Compensation Needs-Based Disability Pension

Benefits for Survivors Overview of Claims Process Resources Miscellaneous

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 if 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


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 1983-1984 Lebanon crisis or the invasions of Grenada and Panama “wartime” service.

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

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. About a quarter 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 In Cook County there are over 250,000 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

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

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


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).

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

1. Direct – medical evidence

2. Aggravation – medical evidence and presumption of soundness

3. Statutory Presumption

4. Secondarily

5. Section 1151 and FTCA claims

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


Direct 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 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 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)


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

VA has a statutory “duty to assist” claimant to obtain medical evidence by making “reasonable efforts.” 38 U.S.C. § 5103A. Best practice is to not rely exclusively on the VA

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


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


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. 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

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

Chart from Veterans Benefits Manual (2007 edition, Barton F. Stichman and Ronald B. Abrams, eds.) (Lexis Nexis), see Additional Resources slide infra

Overview of Claims Process

Procedure to Appeal Decision on Claim for VA Benefits

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

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 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

Miscellaneous

Medal of Honor pension, 38 U.S.C. § 1562, awarded monthly without regard to need at rate of $1104 per month

VA Healthcare To ensure that veterans who may be contemplating

suicide, and concerned family and friends, have immediate access to a trained person who can help, the Department of Veterans (VA) has established a 24-hour national suicide prevention hotline number: 1-800-273-TALK (8255).

Miscellaneous

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

2007 Attorneys cannot charge fee at initial administrative level, but can

charge “reasonable fee” – 20% is presumptively proper – after first stage of administrative decision (NOD)

repeal bill pending in House of Representatives? Proposed regulations for attorney accreditation (i.e., testing) pending

Miscellaneous

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

Miscellaneous

Stories

Miscellaneous

Q&A

Documents

Veterans’ Benefits Overview 2007 Public Benefits Training Presented by John F. Costello, Jr. Legal Assistance Foundation of Metropolitan Chicago Veterans’