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

December 1999/January 2000

Veterans Benefits Update

New, But Not Inexperienced

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

In the last issue of The VVA Veteran, Bill Russo, the former director of VVAís Veterans Benefits Program (VBP), bid you farewell. In September, Bill left VVA and went to work at the U.S. Department of Veterans Affairs. Later that month, I was offered his former position. Trying hard to contain my excitement, I accepted with as much decorum as I could muster. One day later, I was on a plane heading for Chicago.

Like the proverbial baby tossed into the water to learn how to swim, I was plunged into an advanced VVA service representative training conference with seasoned service representatives, members of the national Board of Directors, and State Council officials. Should I have been intimidated? Maybe, but I wasnít. Everyone graciously welcomed me into the group. I could not have felt more at home.

Although new to VVA, I have quite a bit of experience in the field of veterans benefits law. Between 1991 and 1998, I served as counsel to the VA Secretary, working as a senior appellate attorney in the VA Office of the General Counsel. My primary responsibility was to represent the VA in all aspects of appellate litigation before the U.S. Court of Appeals for Veterans Claims. Upon leaving the VA in October 1998, I served as a veterans law consultant to both the Veterans Consortium Pro Bono Program and to members of the private veterans bar.

As a long-time VA "insider," I have had exposure to many veterans service organizations. I have long been aware of VVAís excellent reputation concerning veterans advocacy. Having gone up against Bill Russo and company in court, I have the bruises to prove it. I have watched the VBP thrive since its inception in 1994, and I am extremely proud to be a member of the VVA family. 

A Winning Advocacy Tradition

The VBP has continued its tradition of maintaining a higher percentage of Board of Veteransí Appeals (BVA) allowances than any other veterans service organization. Last quarter, out of all the appeals in which VVA filed briefs or other substantive pleadings, we won 41 percent and had another 41 percent remanded to VA regional offices for further development.

These statistics brought our allowance rate for the last fiscal year (October 1, 1998, to September 30, 1999) to 34 percent and our remand rate to 47 percent. Once again, our win rates are much higher than the average BVA allowance rates for all veterans service organizations for both the last quarter and fiscal year.

The programís success at the BVA is the direct result of the excellent work and dedication of our volunteer attorney, Alex P. Humphrey; the law firm of Michael E. Wildhaber & Associates; the staff at our national office; and our tireless service representatives.

VA's Assisting Veterans with Claims Can Be Illegal

In Morton v. West, 12 VetApp. 477 (1999), the U.S. Court of Appeals for Veterans Claims said that it is illegal for the VA to provide even minimal assistance in developing a claim for VA benefits if that claim is not "well-grounded."  A well-grounded claim requires a medical diagnosis of a current disability, medical or lay evidence of the incurrence or aggravation of a disease or injury during military service, and medical evidence of a relationship between such disease or injury during service nad the current disability.

The law requires that a claim for VA benefits must be well-grounded in order to activate the VA's duty to assist the claimant with the development of evidence.  In Morton, the veteran had not submitted a well-grounded claim.  He argued, however, that language in the Va's own regulations, claims adjudication procedures manual, and a VA Compensation and Pension Service policy statement to the effect that the VA has a duty to assist a claimant, even though eh or she has not submitted a well-grounded claim.

The Court disagree, finding that the law was clear in requiring a well-grounded claim before the duty to assist arises, and that the provisions of the procedures manual were invalid because they were contrary to the statute.  The Court's decision also indirectly invalidated several VA regulations that deal with the duty to assist, as well as those that concern establishing service connection for certain types of disorders, such as undiagnosed illnesses in Gulf War veterans.

VA's Response To Morton

Shortly after the Court handed down its decision in Morton, the VA issued a letter to its regional offices that rescinded the duty-to-assist manual provisions and instructed adjudicators to adhere strictly to the well-grounded claim requirement.  The VA also is in the process of developing regulations to implement the principles delineated in the Morton decision.

Response to the VA's actions have ranged from a lawsuit filed in the U.S. Court of Appeals for the Federal Circuit (which challenges both Morton and the VA's backing away from its pre-Morton assistance requirements) to the introduction of legislation in Congress to reestablish and redefine the VA's duty to assist claimants with the factual development of their claims.

Mastectomy Compensation

Special monthly compensation (SMC) benefits are payable in addition to the basic rate of disability compensation for a service-connected disability.  Although basic disability compensation is available for the post-operative residuals of treatment for service-connected breast cancer in both female and male veterans, entitlement to SMC under what's sometimes known as "K" compensation is not.  This is because the statute does not expressly extend SMC benefits to women who have undergone service-connected mastectomies.  Consequently, the statute's implementing regulation does not authorize SMC for the residual effects of that surgical procedure.

While a congressional amendment of the statute could extend SMC to mastectomies, such action will take time and would result in the delay of much-needed additional compensation.  To this end, VVA has petitioned the VA Secretary to revise its regulations immediately to provide SMC for female veterans who have undergone service-connected mastectomies.

In its petition, VVA argued that as a part of the female reproductive system, the mammary gland falls within the scope of the statute as it currently stands, and that the Secretary's broad rule-making powers are sufficient to allow for the extension of SMC coverage by regulation.  Underlying this argument is the belief that women who suffer from the devastating effects of a service-connected mastectomy are no less deserving of SMC than anyone else who suffers from one of the conditions eligible under the existing statute and regulation.  We will keep you informed as events unfold concerning this important issue.

Additional Resources

The U.S. Court of Appeals for Veterans Claims posts its decisions and orders on an electronic bulletin board. Call 800-869-8654 for details. The Courtís web site is http://www.vetapp.uscourts.gov  The West Group Veterans Appeals Reporter is the official reporting service for the Courtís jurisprudence. Call 800-328-9352 for pricing information. Decisions of the U.S. Court of Appeals for the Federal Circuit, the court that reviews decisions of the Court of Appeals for Veterans Claims, are available without charge on the Internet at http://www.law.emory.edu/fedcircuit/ 


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