February 2000/March 2000
Veterans Benefits Update
Important New Benefits Legislation
By Leonard J. Selfon, Director, Veterans Benefits Program
President Clinton recently signed into law important veterans
benefits legislation that imposes major changes in VA medical treatment
and benefits programs. The Veterans millennium Health Care and Benefits
Act provides for mandatory nursing home care to treat a
service-connected disability or for service-connected veterans rated at
70 percent or more. It provides VA reimbursement for non-VA emergency
treatment if the veteran is enrolled in the VA health-care system and
has undergone VA treatment during the preceding two years. It prohibits
the VA from hiring a health care provider whose license has been
terminated by any state.
The new law grants dependency and indemnification benefits to
survivors of former POWs who die after Sept. 30, 1999, and who were
continuously rated as totally disabled for at least the year prior to
death. It restores prior eligibility of a surviving spouse whose
remarriage was terminated by death or divorce and adds bronchiolo-alveolar
cancer to the list of diseases subject to presumptive service connection
in radiation exposure cases. The Act requires the VA to provide an
enhanced quality-assurance program within the Veterans Benefits
Administration and expedites the reintegration of homeless veterans into
the labor force. While this legislation is a major accomplishment and
addresses long-standing concerns of veterans and their families, there
is still a lot more work to be done.
The past few months have been busy for the VAís Regulatory Affairs
and General Counsel offices. In late January, VVA filed its response to
the VAís proposed regulations concerning the submission of
well-grounded claims for benefits. As we did at the time of the VAís
notice of proposed rulemaking in January 1999, we worked with Paralyzed
Veterans of America and submitted a joint commentary. Several other
veterans service organizations and interested parties also filed
responses. The VA is required to consider and address the comments
received before issuing its final version of the regulations.
In November 1998, the VA lifted restrictions on VA health-care
providers that prevented them from providing opinions and completing
forms for use in pursuing claims for VA and other types of benefits.
That directive expired last September. During that month, however, the
Veterans Health Administration notified VA medical facilities and
regional offices that the practice of helping veterans in this respect
was to be continued. The one exception to this policy is that VA
health-care professionals may not complete forms for examination if a
third party customarily pays for an examination but will not pay the VA.
The exception is apparently aimed at barring VA doctors from completing
Social Security disability forms.
The VA recently issued a complicated final regulation to implement
the Health Care Eligibility Reform Act of 1996. The new rule addresses
who is eligible to enroll in the VA health-care system, how to enroll
and un-enroll, and who may receive treatment without being enrolled. It
also includes a list of seven priority treatment categories. In
addition, the regulation describes a medical benefits package that
defines hospital and outpatient basic care, as well as types of
In an unrelated notice published in the Federal Register, the
VA established an annual income of $8,316.64 as the 1998 poverty
threshold for one person. This figure is significant for those who claim
that their employment is marginal and should not prevent an award of a
total disability evaluation on the basis of individual employability.
Also published in the Federal Register was a list of conditions
that the VA has determined will not be presumed to have been
incurred as the result of exposure to herbicides used in Vietnam during
the Vietnam era.
These conditions unrelated to herbicide exposure include
hepatobiliary cancers, nasal/nasopharyngeal cancer, bone cancer, breast
cancer, urinary bladder cancer, renal cancer, testicular cancer,
leukemia, abnormal sperm parameters and infertility, motor/coordination
dysfunction, chronic peripheral nervous system disorders, metabolic and
digestive disorders (other than diabetes mellitus), immune system
disorders, circulatory disorders, respiratory disorders (other than
certain respiratory cancers), skin cancer, cognitive and
neuropsychiatric effects, gastrointestinal tumors, and any other
condition for which the VA Secretary has not specifically determined
that a presumption of service connection is warranted. The VAís
decision in this regard is based upon scientific findings.
In a recent precedential opinion, the VA general counsel addressed
the types of evidence required to establish that a veteran had engaged
in combat with the enemy for purposes of triggering certain statutory
presumptions in claims concerning combat-related physical or psychiatric
injuries. The essential holding is that the phrase "engaged in
combat with the enemy" requires that a veteran must have
participated in events that constituted an "actual fight or
encounter with a military foe or hostile unit or instrumentality."
Furthermore, the issue of whether any particular set of circumstances
constitutes engagement in combat with the enemy must be resolved on a
case-by-case basis. Since there is no legal limitation as to the types
of evidence that may be used by a veteran in support of an assertion of
participation in combat, any evidence that tends to prove that fact may
be submitted. The VA is required to consider such evidence in light of
all of the pertinent evidence of record.
The general counsel additionally held that the doctrine of
benefit-of-the-doubt (which provides that claims must be resolved in a
veteranís favor where positive and negative evidence are equally
balanced) is applicable to questions of whether a veteran had engaged in
On the judicial front, appellants before the U.S. Court of Appeals
for Veterans Claims can now check the status of their cases by docket
number at the Courtís web site, www.vetapp.uscourts.gov
The Courtís docket is frequently updated and includes lists of motions
filed, as well as whether they have been granted or denied. Court
decisions and orders also are posted on an electronic bulletin board.