October 2000/November 2000
Veterans Benefits Update
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
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
- 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
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
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
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.