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

June 2000/July 2000

Veterans Benefits Update

Good News On Claims

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

At last we have some welcome news on the veterans benefits front. The news is from the U.S. House of Representatives, which recently passed important legislation to make it easier for veterans to prove their claims for federal veterans benefits.

As we have previously reported, the law currently requires that a claimant for VA benefits submit a "well-grounded'' claim before the VA will assist in developing the facts surrounding that claim. Such assistance can range from obtaining military, VA, or private medical records, to performing a physical or psychiatric examination to ascertain service connection for a disease or injury, or the level of disability of an already service-connected disorder.

The chronological order of a well-grounded claim triggering the VA's legal duty to assist was cemented by the U.S. 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 help claimants with the development of evidence in support of a claim for VA benefits if the claim is not well-grounded. A proposed VA regulation, issued after the Morton decision, 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 of its determination that the claim is not well-grounded.

During this time, if it has not already done so, the VA must obtain service medical records and 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. In our response to the VA's proposed regulation, VVA commented that its provisions would make a bad situation worse.

In March, VVA and several other veterans service organizations (VSOs) testified before the House Veterans Affairs Committees' Subcommittee on Benefits on proposed legislation that would abolish the well-grounded claim prerequisite and require the VA to develop claims at the outset. Following subsequent meetings with the House Veterans Affairs Committee staff, the VA, and the VSOs, the proposed legislation reached its final evolution. Most of the VSOs' suggested revisions were adopted.

On July 25, the House, by a 414-0 vote, passed H.R. 4864, The Veterans Claims Assistance Act of 2000. This landmark legislation virtually eliminates the requirement of the submission of a well-grounded claim before receiving the VA's assistance with the development of the evidence. The bill also clearly identifies both the claimant's and the VA's obligations with respect to securing evidence in support of a claim for VA benefits.

Part of the VA's duty to assist includes its responsibility to obtain relevant records in its possession from any other federal agency (such as the Social Security Administration) at no cost to the claimant. The bill also mandates that the VA would be required to perform a thorough physical or psychiatric examination, or to obtain a medical opinion, where there is insufficient evidence already of record to establish service-connection of a current disability or collection of symptoms--provided that there is evidence that an event, injury, or disease during active military service was capable of causing or aggravating a current disability).

Finally, the bill would require that the VA make multiple efforts to obtain all relevant evidence identified by the claimant and notify the claimant (and the claimant's representative) of such efforts. Under the act, claimants would have two years to request that the VA reopen a claim that was denied as not well-grounded subsequent to the Morton decision.

VVA is extremely pleased with congressional passage of this bill, and we are working closely with the Senate Veterans Affairs Committee, the VA, and the other VSOs on the Senate's version of this legislation. We are hopeful that the Senate will pass a similar bill later this year. With luck, a reconciled duty-to-assist bill could be signed into law by the President early next year.

In related legislation, the House also passed H.R. 4850, The Veterans Benefits Act of 2000, which calls for an increase in the rates of disability compensation for veterans with service-connected disabilities, as well as the rates for dependency and indemnity compensation for survivors of certain disabled veterans. The bill also provides entitlement to service connection for a heart attack or a stroke suffered by a reservist during inactive duty for training. Moreover, this act calls for entitlement to special monthly compensation benefits for women who have undergone service-connected single or bilateral radical mastectomies. Interestingly, the bill follows a VA General Counsel opinion that under current laws special monthly compensation is not available for such mastectomies.

Similar legislation is under consideration in the Senate. We will keep you updated.

   

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