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

October 2000/November 2000

Veterans Benefits Update

Legislative Victories

By Leonard J. Selfon, Director, Veterans Benefits Program

In probably the most significant legislative action affecting veterans benefits since the Veterans Judicial Review Act of 1988, Congress unanimously passed several bills that were sorely needed and long overdue. The Veterans Claims Assistance Act of 2000, the Veterans Benefits and Health Care Improvement Act of 2000, and the Veterans Compensation Cost-of-Living Adjustment Act of 2000 were passed by the House and the Senate in October.

The Claims Assistance Act overturns a decade of court decisions concerning the requirement that a claimant for VA benefits submit a well-grounded claim before the VA will assist in developing the evidence surrounding that claim. As defined by the courts, in order to satisfy the well-grounded claim requirement, a claimant had to submit evidence with the initial claim that would be sufficient to prove the claimís merits. This standard resulted in the VA denying hundreds of thousands of claims without having to seek supporting documentation.

Ultimately, the U.S. Court of Appeals for Veterans Claims decided, in Morton v. West, 12 Vet.App. 477 (1999), that the VA has no authority to assist claimants with the development of evidence in support of a claim for VA benefits, if the claim is not well-grounded. In implementing the Morton decision, the VA gave claimants 30 days to submit the evidence necessary to render a claim well-grounded. If such evidence was not received before the deadline, the VA denied the claim.

In March 2000, VVA testified before the House Committee on Veteransí Affairs Subcommittee on Benefits on proposed legislation that would abolish the well-grounded claim prerequisite and require the VA to assist in developing claims at the outset. A similar bill was subsequently introduced in the Senate. VVA worked very closely with Senators, Representatives, congressional staff, other veterans service organizations, and the VA on this legislation.

The Claims Assistance Act requires the VA to furnish the appropriate forms and instructions to claimants who apply for VA benefits. Upon receipt of a substantially complete application, the VA must notify the claimant of any information or evidence necessary to substantiate the claim. If that information is not received within one year of the VAís notification, no benefits will be paid.

The Act abolishes the well-grounded claim prerequisite and obligates the VA to make "reasonable efforts" to assist a claimant by obtaining evidence that the claimant identifies. If the VA needs a new medical opinion to make a decision on a claim, the VA is required to provide a VA physical or psychiatric examination.

When all relevant evidence has been obtained, the VA must give the claimant the benefit of the doubt if the evidence in favor of an award of benefits is approximately equal to the evidence against such an award. The Act allows any claimant whose claim was denied for lack of well-groundedness on or after July 14, 1999 (the date of the Morton decision), to request readjudication.

The Benefits and Health Care Improvement Act includes significant additions to current VA benefits. Among these are:

  • Recognition of a stroke or heart attack incurred or aggravated by a member of a reserve component in the performance of duty during inactive duty for training as being considered to be service-connected for purposes of receiving VA compensation.
  • Eligibility of women veterans for special monthly compensation due to the service-connected loss of one or both breasts, including loss due to mastectomy.
  • Provision of health care and compensation to veterans injured as the result of participation in a VA-compensated work therapy program.
  • Provision of health care, vocational training, and monetary allowances to the children of women Vietnam veterans who suffer from certain birth defects in addition to spina bifida. Birth defects covered under the Act are to be designated by the VA and will include permanent physical and mental disabilities that are "associated" with the motherís service in Vietnam during the Vietnam War era.
  • An increase in educational assistance benefits under the Montgomery GI Bill ($650.00 per month for a three-year period of service; $528 per month for a two-year period of service, both effective November 1).
  • An increase in the basic educational allowance for survivors and dependents ($588.00 per month, effective November 1).

Finally, the Cost-of-Living Adjustment Act increases the VA disability compensation and dependency and indemnity compensation. The increased amounts will be effective December 1 and will equal the percentage increase in Social Security payments.

It is our understanding that the VA is in the process of preparing regulations and internal guidelines to implement these important changes in veterans benefits law.

On September 30, 1999, a VA Veterans Health Administration (VHA) directive expired that removed restrictions on VA health-care practitioners in providing statements for their patients on the nature, etiology, and severity of their disabilities. Although the VHA had informally continued the policy of allowing treating VA physicians and psychiatrists to offer statements in support of benefits claims, the VHA had not issued a new directive.

This resulted in inconsistent practices among VA medical facilities. Several VVA service representatives said that VA treating physicians had refused to provide supportive medical opinions for their patientsí claims. Moreover, some VA practitioners said their employment would be jeopardized if they cooperated in this manner. In response to a draft replacement directive, the VBP in September provided commentary to the Under Secretary for Health.

On September 22, the VHA issued Directive No. 2000-29, "Provision of Medical Opinions by VA Health Care Practitioners." The directive establishes a nationwide policy that requires VA health-care providers, upon request, to provide their patients with descriptive statements and opinions about their medical conditions (including causation), employability, and degree of disability. All prior restrictions have been rescinded. VA physicians also have been directed to provide such opinions for their patientsí claims with other agencies, such as the Social Security Administration. Recipients of these opinions must sign a disclaimer that they understand that the physicianís opinion does not constitute an official VA benefits determination.

VA regulations provide for total (100 percent) disability ratings on the basis of individual unemployability due to service-connected disability if the veteran is unable to obtain or maintain a substantially gainful occupation as a result of such disability (38 C.F.R. ß 4.16(a)). The regulation states that marginal employment shall not be considered to be substantially gainful employment. "Marginal employment" means the veteranís earned annual income does not exceed the amount established by the Bureau of the Census as the poverty threshold for one person (in 1999, $8,501). Veterans who satisfy the physical or psychiatric requirements for a total rating based on individual unemployability and whose earned income in 1999 did not exceed $8,500 will qualify for the benefit.

The Veterans Benefits Program has conducted basic service representative training each summer in Washington, D.C. The week-long course is designed to educate prospective VVA service representatives about veteransí advocacy before the VA. This yearís training class was held during the week of June 5 at George Washington University. Due to popular demand, however, the VBP was asked to conduct an additional basic training class on the West Coast.

Working in conjunction with the VVA Washington State Council and the Washington Department of Veterans Affairs, the training class was conducted in October. The class included both veterans and non-veterans from Washington, Idaho, and Oregon. Many of the students had previous experience representing veterans. A comprehensive take-home examination was forwarded to class members, who must pass the test in order to receive VVA accreditation.

The entire process, from planning to execution, was exceptionally smooth and should serve as a model for other state and regional basic service representative training. A special thanks to Washington State Council President (and accredited VVA service representative) Jim Grissom for his efforts in preparing and coordinating the training class, the Washington State Council, and to the Washington State Department of Veterans Affairs for their financial assistance.

Another training class was conducted in Gallup, New Mexico, in August. Essentially a refresher course in basic service representation issues, VBP personnel provided training to students from the Navajo Nation. Our goal was to assist the Navajo Nationís Department of Veterans Affairs in providing effective representation to Native American veterans and their dependents.

Also in August, VVA Chapter Service Coordinator training and a seminar on VA dependents and survivors benefits were conducted during the VVA Leadership Conference in Buffalo.

This yearís VVA advanced service representative training class will be held December 8-9 in Chicago. Changes in VA laws, regulations, and procedures will be addressed.

   

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