A publication of Vietnam Veterans of America, Inc. ®
An organization chartered by the U.S. Congress

February 2000/March 2000


Veterans Benefits Update

Important New Benefits Legislation

By Leonard J. Selfon, Director, Veterans Benefits Program

President Clinton recently signed into law important veterans benefits legislation that imposes major changes in VA medical treatment and benefits programs. The Veterans millennium Health Care and Benefits Act provides for mandatory nursing home care to treat a service-connected disability or for service-connected veterans rated at 70 percent or more. It provides VA reimbursement for non-VA emergency treatment if the veteran is enrolled in the VA health-care system and has undergone VA treatment during the preceding two years. It prohibits the VA from hiring a health care provider whose license has been terminated by any state.

The new law grants dependency and indemnification benefits to survivors of former POWs who die after Sept. 30, 1999, and who were continuously rated as totally disabled for at least the year prior to death. It restores prior eligibility of a surviving spouse whose remarriage was terminated by death or divorce and adds bronchiolo-alveolar cancer to the list of diseases subject to presumptive service connection in radiation exposure cases. The Act requires the VA to provide an enhanced quality-assurance program within the Veterans Benefits Administration and expedites the reintegration of homeless veterans into the labor force. While this legislation is a major accomplishment and addresses long-standing concerns of veterans and their families, there is still a lot more work to be done.

The past few months have been busy for the VAís Regulatory Affairs and General Counsel offices. In late January, VVA filed its response to the VAís proposed regulations concerning the submission of well-grounded claims for benefits. As we did at the time of the VAís notice of proposed rulemaking in January 1999, we worked with Paralyzed Veterans of America and submitted a joint commentary. Several other veterans service organizations and interested parties also filed responses. The VA is required to consider and address the comments received before issuing its final version of the regulations.

In November 1998, the VA lifted restrictions on VA health-care providers that prevented them from providing opinions and completing forms for use in pursuing claims for VA and other types of benefits. That directive expired last September. During that month, however, the Veterans Health Administration notified VA medical facilities and regional offices that the practice of helping veterans in this respect was to be continued. The one exception to this policy is that VA health-care professionals may not complete forms for examination if a third party customarily pays for an examination but will not pay the VA. The exception is apparently aimed at barring VA doctors from completing Social Security disability forms.

The VA recently issued a complicated final regulation to implement the Health Care Eligibility Reform Act of 1996. The new rule addresses who is eligible to enroll in the VA health-care system, how to enroll and un-enroll, and who may receive treatment without being enrolled. It also includes a list of seven priority treatment categories. In addition, the regulation describes a medical benefits package that defines hospital and outpatient basic care, as well as types of preventative care.

In an unrelated notice published in the Federal Register, the VA established an annual income of $8,316.64 as the 1998 poverty threshold for one person. This figure is significant for those who claim that their employment is marginal and should not prevent an award of a total disability evaluation on the basis of individual employability. Also published in the Federal Register was a list of conditions that the VA has determined will not be presumed to have been incurred as the result of exposure to herbicides used in Vietnam during the Vietnam era.

These conditions unrelated to herbicide exposure include hepatobiliary cancers, nasal/nasopharyngeal cancer, bone cancer, breast cancer, urinary bladder cancer, renal cancer, testicular cancer, leukemia, abnormal sperm parameters and infertility, motor/coordination dysfunction, chronic peripheral nervous system disorders, metabolic and digestive disorders (other than diabetes mellitus), immune system disorders, circulatory disorders, respiratory disorders (other than certain respiratory cancers), skin cancer, cognitive and neuropsychiatric effects, gastrointestinal tumors, and any other condition for which the VA Secretary has not specifically determined that a presumption of service connection is warranted. The VAís decision in this regard is based upon scientific findings.

In a recent precedential opinion, the VA general counsel addressed the types of evidence required to establish that a veteran had engaged in combat with the enemy for purposes of triggering certain statutory presumptions in claims concerning combat-related physical or psychiatric injuries. The essential holding is that the phrase "engaged in combat with the enemy" requires that a veteran must have participated in events that constituted an "actual fight or encounter with a military foe or hostile unit or instrumentality."

Furthermore, the issue of whether any particular set of circumstances constitutes engagement in combat with the enemy must be resolved on a case-by-case basis. Since there is no legal limitation as to the types of evidence that may be used by a veteran in support of an assertion of participation in combat, any evidence that tends to prove that fact may be submitted. The VA is required to consider such evidence in light of all of the pertinent evidence of record.

The general counsel additionally held that the doctrine of benefit-of-the-doubt (which provides that claims must be resolved in a veteranís favor where positive and negative evidence are equally balanced) is applicable to questions of whether a veteran had engaged in combat.

On the judicial front, appellants before the U.S. Court of Appeals for Veterans Claims can now check the status of their cases by docket number at the Courtís web site, www.vetapp.uscourts.gov The Courtís docket is frequently updated and includes lists of motions filed, as well as whether they have been granted or denied. Court decisions and orders also are posted on an electronic bulletin board.

 

E-mail us at TheVeteran@vva.org
 

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