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

October 2001/November 2001

Veterans Benefits Update

Regulations, Opinions, And Initiatives

By Leonard J. Selfon, Director, Veterans Benefits Program

In November 1999, VVA petitioned the Secretary of Veterans Affairs to amend existing regulations to provide special monthly compensation (SMC) benefits to women veterans who have undergone service-connected mastectomies. At the time of the petition, a determination of service connection was available for the surgical removal of one or both breasts. Nevertheless, the statutory authority did not expressly extend SMC benefits, which are payable in addition to the basic rates of compensation, to women who have undergone service-connected mastectomies.

Until recently, SMC was available for a veteran who, as the result of a service-connected disability, suffered the anatomical loss or loss of use of one or more creative organs, one foot or hand, both buttocks, blindness of one eye (having only light perception), complete organic aphonia (with constant inability to communicate by speech), or bilateral deafness (with the absence of air and bone conduction). Congress recently amended the law by making the service-connected anatomical loss of one or both breasts by a woman veteran a condition eligible for the payment of SMC.

In order to implement this revision of the statute, the VA in July 2001, published a proposed regulation that would authorize SMC for a women veteran who has suffered the ``anatomical loss of one or both breasts (including loss by mastectomy).’’ The VA, however, included a definition of ``anatomical loss of a breast’’ for purposes of eligibility for SMC. This new provision would exclude such eligibility, unless there is a ``complete’’ surgical removal of breast tissue or the equivalent loss of breast tissue due to injury. This definition includes excision by radical mastectomy, modified radical mastectomy, and simple (total) mastectomy, but excludes wide local excision, with or without significant alteration of size or form.

In August 2001, VVA submitted formal comments to the VA concerning this proposed regulation. We said that the new definition of anatomical loss constitutes direct defiance of Congress’ edict.

There is no question that Congress intended to authorize SMC benefits to women who have undergone the often severe physiological and psychiatric ordeal of a service-connected mastectomy. Wide local excision of breast tissue can be just as traumatic from a medical and an emotional standpoint as a radical or simple mastectomy. This type of excision can result in significant ``anatomical loss’’--the statutory criteria for eligibility for SMC coverage. Other effects can include loss of biological function and loss of sensation.

The rationale offered for this narrow construction of the statutory amendment is basically that it is more convenient than requiring that the adjudicator attempt to identify how much breast tissue was actually removed, since there are no current standards that define the partial removal of a breast. Although wide local excision can, at times, result in only a small amount of tissue loss, quite often the tissue is taken down to the breast bone. To deny the relatively small SMC payment to women who have suffered such devastating anatomical and psychological loss for the sake of administrative convenience is nothing short of unconscionable.

Consequently, VVA registered its strong opposition to the limitation of SMC for women who have undergone a service-connected mastectomy or breast injury that results in less than a complete loss of breast tissue. Given the relatively small number of women who would qualify for SMC, as well as the relatively low amount of the monthly SMC payment, providing SMC to women who have had wide local excision of breast tissue would not result in inordinate cash outlays.

VVA further urged that the rating schedule concerning the levels of service-connected disability compensation for mastectomies be revisited. Factors such as the psychiatric disability that can result from such a procedure need to be taken into consideration when assessing the level of disability attributable to the loss of one or more breasts.

New VA Regulations And OGC Opinions

Several new VA benefits-related regulations and Office of the General Counsel precedential legal opinions recently have been issued. Some of the more interesting ones include the following:

A veteran who has been sexually assaulted during inactive duty for training may now be awarded service-connection for Post-traumatic Stress Disorder on the basis of becoming disabled due to injury, as opposed to disease. Service connection for conditions incurred in or aggravated during inactive duty for training are limited to those caused by an injury.

The VA has revised that portion of its Schedule for Rating Disabilities relating to liver disorders. If included, for the first time, guidance on rating veterans who have been awarded service connection for hepatitis C. The regulation became effective on July. Nevertheless, Congress has not yet passed legislation, nor has the VA proposed regulations, that would afford presumptive service connection for hepatitis C in veterans with service in Vietnam during the war.

The VA has issued final regulations to implement the Veterans Claims Assistance Act of 2000. These regulations encompass the minimum submission of evidence necessary to trigger the VA’s statutory duty to assist claimants with the evidentiary development of their claims, as well as the VA’s obligations concerning obtaining evidence, providing compensation and pension examinations and notifying claimants of missing necessary information or evidence.

VA Claims Processing Task Force

In May, I testified before VA Secretary Principi’s Claims Processing Task Force. The focus of the testimony was the importance of ensuring that VA adjudicators get it right the first time. Ensuring that the evidentiary record is fully developed prior to the initial adjudication is critical. This includes making sure that any medical examination is adequate for rating purposes. Otherwise, both administrative and judicial appeals will continue at their current outrageous levels, or increase.

We emphasized that any attempt to improve the current adjudicatory process must begin with modifying the VA’s institutional mindset at all levels. Adjudicators must avoid looking for reasons to deny a claim before beginning the process of weighing the affirmative evidence in favor of a grant of benefits. We also made recommendations designed to promote uniformity, continuity, and consistency among adjudicators, accuracy and timeliness of work product, and accountability at all levels.

In October, the task force issued its final recommendations to the Secretary. The report focused on the need for increased training of adjudicative personnel; reorganizing adjudicators into specialized teams with expertise in adjudicating certain types of claims; improving military record recovery times from the National Personnel Record Center; securing funding for increased administrative support; expediting favorable decisions; establishing and enforcing accountability among adjudicators and management; and increasing integration and cooperation between all elements of the VA (VBA, VHA, and BVA). The task force adopted several of VVA’s recommendations.

The Tiger Team Initiative

In August, the VBA announced a new initiative to expedite the processing of more than 60,000 claims currently languishing in the regional offices’ national backlog. Code named Tiger Team, the 18-month initiative will cull pending claims for veterans that have been in the pipeline for one year or longer and where the veteran is age 70 or older. The VA estimates that veterans in this category are dying at the rate of 1,369 each day.

The Tiger Team will be spearheaded by the Cleveland VA Regional Office, which will be supported by adjudicators in nine other regional offices. The underlying rationale for this action is that while these cases will receive expedited development and treatment by pulling them out of the national claims docket, the processing of the remaining claims of other, younger veterans will be speeded up as well.

   

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