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

April 2000/May 2000

Veterans Benefits Update

VVA Keeps Up Its Winning Percentage

By Leonard J. Selfon, Esq., Director, Veterans Benefits Program

VVA continues to maintain a higher percentage of Board of Veterans’ Appeals (BVA) allowances than any other veterans service organization. During the first quarter of 2000, out of all the appeals in which we filed briefs or other substantive pleadings, we won 47 percent. An additional 28 percent were remanded to the VA regional offices for further development. This translates to a favorable decision rate of 75 percent.

Once again, our win rates are much higher than the corresponding average BVA allowance rates for all other veterans service organizations, attorneys, and agents for the last quarter. The Veterans Benefits success at the BVA is the direct result of the excellent work and dedication on the part of our volunteer attorney, Alex P. Humphrey, the law firm of Michael E. Wildhaber & Associates, the staff at our national office, and our dedicated service representatives.

Here is an update on the continuing controversy concerning the requirement that a claimant for VA benefits submit a well-grounded claim before the VA will assist in developing that claim. As reported in our last column, VVA, together with the Paralyzed Veterans of America, filed our joint comments to the VA’s proposed regulations on well-grounded claims. The regulation is based upon the Court of Appeals for Veterans Claims’ decision in Morton v. West.

In that decision, the Court held that the VA has no authority under the law to assist claimants with the development of evidence in support of a claim for VA benefits, if the claim is not well-grounded. The proposed regulation gives a claimant 30 days to submit evidence required to render a claim well-grounded (as defined by the regulation), following the VA’s written notification. During this time, if it has not already done so, the VA must obtain service medical records and any outstanding VA records that the claimant sufficiently identifies.

The VA will not schedule any examinations or seek to obtain private medical records during the 30-day period. If evidence sufficient to render the claim well-grounded is not received by the deadline, the VA will deny the claim as not being well-grounded.

The regulation also contains certain limited exceptions to these procedures that allow for some development, even if the claim is not well-grounded. Examples include: claims filed within one year of separation from active service; evidence of medical treatment being denied due to a lack of funds; the submission of competent medical evidence of terminal illness; combat veterans’ Post-traumatic Stress Disorder claims supported by competent medical evidence of symptomatology; and in-service sexual assault victims’ PTSD claims also supported by competent medical evidence of symptomatology.

VVA believes the regulation as proposed goes beyond the intent of Congress when it established the reciprocal requirements of a claimant’s responsibility to submit a well-grounded claim and the VA’s duty to assist in the development of claims for benefits. Furthermore, it is inevitable that the courts will declare the regulation invalid under their precedential decisions, since the regulation calls for limited VA assistance prior to a determination that a claim is well-grounded. The VA has taken our comments under consideration.

On March 23, VVA and several other VSOs testified before the House Committee on Veterans’ Affairs Subcommittee on Benefits with respect to proposed legislation H.R. 3193, the Duty To Assist Veterans Act. This bill abolishes well-grounded claim prerequisites and calls for the VA to develop claims at the outset. A similar bill has been introduced in the Senate, S. 1810. VVA will continue to work with senators, representatives, congressional staff, other service organizations and the VA until this issue has been satisfactorily resolved.

On February 18, the VA issued a proposed regulation to implement a successful pilot program, known previously as the Decision Review Officer (DRO) Program. The regulation would allow a claimant who has filed a timely Notice of Disagreement to obtain de novo (i.e., start from scratch) review of an adverse rating decision by certain VA adjudicators. Essentially a mediation process, the new program allows veterans and their service representatives to sit down in an informal setting with the reviewing official and discuss the claim(s) at issue.

The reviewer, who did not participate in the appealed decision, is empowered to conduct whatever additional development is necessary to adjudicate the claim on the merits and to overturn or revise an adverse rating action. The reviewer is further required to advise the claimant of the evidence necessary to render the claim well-grounded. Prior to the reviewer’s decision, the parties must agree that the evidence in the veteran’s (or other claimant’s) claims file constitutes the entire record to be considered. Should the reviewer uphold the rating decision, the claim may be appealed to the BVA.

Reports from those who have participated in the pilot program have been extremely favorable. Statistics demonstrate that these programs have resulted in a substantial decline in the number of appeals taken to the BVA. This process provides a great opportunity to win our cases at the regional office level. A final regulation is expected later this year.

In the past year, more than 29 million veterans benefits payments have been issued. However, not all recipients are aware there are several choices concerning how they receive their benefits. Recently, the U.S. Treasury Department announced a new payment method. Currently, veterans can choose from three different payment methods.

The first choice is through direct deposit. More than 75 percent of VA beneficiaries choose this option for receiving benefits. For those who have an existing account at a financial institution, this option insures that payments go directly into the recipient’s account. Veterans and dependents do not have to wait in line to cash or deposit their checks, and the chance of losing a check or having it stolen ie eliminated.

For veterans’ beneficiaries who do not have a current bank or credit union account, the Treasury has developed a new type of account, the Electronic Transfer Account (ETA). This is a low-cost, federally insured account that is available to all federal benefits recipients. The account costs three dollars per month and allows at least four cash withdrawals and four balance inquiries per month.

In eight states--Alabama, Arkansas, Florida, Georgia, Kentucky, Missouri, North Carolina, and Tennessee--veterans beneficiaries can receive federal and state benefits using a single card. The Benefits Security Card gives beneficiaries access to benefit payments at ATMs, point-of-sale terminals, and financial institutions. A small monthly fee is required.

Finally, beneficiaries can still receive checks in the mail. Benefit payments will not be withheld or delayed, no matter which payment option you select. To learn more about payment choices, call 877-838-2778.

   

E-mail us at TheVeteran@vva.org

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