December 1999/January 2000
Veterans Benefits Update
New, But Not Inexperienced
By Leonard J. Selfon, Esq., Director, Veterans Benefits Program
In the last issue of The VVA Veteran, Bill Russo, the former director of VVA’s
Veterans Benefits Program (VBP), bid you farewell. In September, Bill left VVA
and went to work at the U.S. Department of Veterans Affairs. Later that month, I
was offered his former position. Trying hard to contain my excitement, I
accepted with as much decorum as I could muster. One day later, I was on a plane
heading for Chicago.
Like the proverbial baby tossed into the water to learn how to swim, I was
plunged into an advanced VVA service representative training conference with
seasoned service representatives, members of the national Board of Directors,
and State Council officials. Should I have been intimidated? Maybe, but I wasn’t.
Everyone graciously welcomed me into the group. I could not have felt more at
Although new to VVA, I have quite a bit of experience in the field of
veterans benefits law. Between 1991 and 1998, I served as counsel to the VA
Secretary, working as a senior appellate attorney in the VA Office of the
General Counsel. My primary responsibility was to represent the VA in all
aspects of appellate litigation before the U.S. Court of Appeals for Veterans
Claims. Upon leaving the VA in October 1998, I served as a veterans law
consultant to both the Veterans Consortium Pro Bono Program and to
members of the private veterans bar.
As a long-time VA "insider," I have had exposure to many veterans
service organizations. I have long been aware of VVA’s excellent reputation
concerning veterans advocacy. Having gone up against Bill Russo and company in
court, I have the bruises to prove it. I have watched the VBP thrive since its
inception in 1994, and I am extremely proud to be a member of the VVA family.
A Winning Advocacy Tradition
The VBP has continued its tradition of maintaining a higher percentage of
Board of Veterans’ Appeals (BVA) allowances than any other veterans service
organization. Last quarter, out of all the appeals in which VVA filed briefs or
other substantive pleadings, we won 41 percent and had another 41 percent
remanded to VA regional offices for further development.
These statistics brought our allowance rate for the last fiscal year (October
1, 1998, to September 30, 1999) to 34 percent and our remand rate to 47 percent.
Once again, our win rates are much higher than the average BVA allowance rates
for all veterans service organizations for both the last quarter and fiscal
The program’s success at the BVA is the direct result of the excellent work
and dedication of our volunteer attorney, Alex P. Humphrey; the law firm of
Michael E. Wildhaber & Associates; the staff at our national office; and our
tireless service representatives.
VA's Assisting Veterans with Claims Can Be Illegal
In Morton v. West, 12 VetApp. 477 (1999), the U.S. Court of Appeals
for Veterans Claims said that it is illegal for the VA to provide even minimal
assistance in developing a claim for VA benefits if that claim is not
"well-grounded." A well-grounded claim requires a medical
diagnosis of a current disability, medical or lay evidence of the incurrence or
aggravation of a disease or injury during military service, and medical evidence
of a relationship between such disease or injury during service nad the current
The law requires that a claim for VA benefits must be well-grounded in order
to activate the VA's duty to assist the claimant with the development of
evidence. In Morton, the veteran had not submitted a well-grounded
claim. He argued, however, that language in the Va's own regulations,
claims adjudication procedures manual, and a VA Compensation and Pension Service
policy statement to the effect that the VA has a duty to assist a claimant, even
though eh or she has not submitted a well-grounded claim.
The Court disagree, finding that the law was clear in requiring a
well-grounded claim before the duty to assist arises, and that the provisions of
the procedures manual were invalid because they were contrary to the
statute. The Court's decision also indirectly invalidated several VA
regulations that deal with the duty to assist, as well as those that concern
establishing service connection for certain types of disorders, such as
undiagnosed illnesses in Gulf War veterans.
VA's Response To Morton
Shortly after the Court handed down its decision in Morton, the VA
issued a letter to its regional offices that rescinded the duty-to-assist manual
provisions and instructed adjudicators to adhere strictly to the well-grounded
claim requirement. The VA also is in the process of developing regulations
to implement the principles delineated in the Morton decision.
Response to the VA's actions have ranged from a lawsuit filed in the U.S.
Court of Appeals for the Federal Circuit (which challenges both Morton
and the VA's backing away from its pre-Morton assistance requirements) to
the introduction of legislation in Congress to reestablish and redefine the VA's
duty to assist claimants with the factual development of their claims.
Special monthly compensation (SMC) benefits are payable in addition to the
basic rate of disability compensation for a service-connected disability.
Although basic disability compensation is available for the post-operative
residuals of treatment for service-connected breast cancer in both female and
male veterans, entitlement to SMC under what's sometimes known as "K"
compensation is not. This is because the statute does not expressly extend
SMC benefits to women who have undergone service-connected mastectomies.
Consequently, the statute's implementing regulation does not authorize SMC for
the residual effects of that surgical procedure.
While a congressional amendment of the statute could extend SMC to
mastectomies, such action will take time and would result in the delay of
much-needed additional compensation. To this end, VVA has petitioned the
VA Secretary to revise its regulations immediately to provide SMC for female
veterans who have undergone service-connected mastectomies.
In its petition, VVA argued that as a part of the female reproductive system,
the mammary gland falls within the scope of the statute as it currently stands,
and that the Secretary's broad rule-making powers are sufficient to allow for
the extension of SMC coverage by regulation. Underlying this argument is
the belief that women who suffer from the devastating effects of a
service-connected mastectomy are no less deserving of SMC than anyone else who
suffers from one of the conditions eligible under the existing statute and
regulation. We will keep you informed as events unfold concerning this
The U.S. Court of Appeals for Veterans Claims posts its decisions and orders
on an electronic bulletin board. Call 800-869-8654 for details. The Court’s
web site is http://www.vetapp.uscourts.gov
The West Group Veterans Appeals Reporter is the official reporting
service for the Court’s jurisprudence. Call 800-328-9352 for pricing
information. Decisions of the U.S. Court of Appeals for the Federal Circuit, the
court that reviews decisions of the Court of Appeals for Veterans Claims, are
available without charge on the Internet at http://www.law.emory.edu/fedcircuit/