April 2000/May 2000
Veterans Benefits Update
VVA Keeps Up Its Winning Percentage
By Leonard J. Selfon, Esq., Director, Veterans Benefits Program
VVA continues to maintain a higher percentage of Board of Veterans’
Appeals (BVA) allowances than any other veterans service organization.
During the first quarter of 2000, out of all the appeals in which we filed
briefs or other substantive pleadings, we won 47 percent. An additional 28
percent were remanded to the VA regional offices for further development.
This translates to a favorable decision rate of 75 percent.
Once again, our win rates are much higher than the corresponding
average BVA allowance rates for all other veterans service organizations,
attorneys, and agents for the last quarter. The Veterans Benefits success
at the BVA is the direct result of the excellent work and dedication on
the part of our volunteer attorney, Alex P. Humphrey, the law firm of
Michael E. Wildhaber & Associates, the staff at our national office,
and our dedicated service representatives.
Here is an update on the continuing controversy concerning the
requirement that a claimant for VA benefits submit a well-grounded claim
before the VA will assist in developing that claim. As reported in our
last column, VVA, together with the Paralyzed Veterans of America, filed
our joint comments to the VA’s proposed regulations on well-grounded
claims. The regulation is based upon the Court of Appeals for Veterans
Claims’ decision in Morton v. West.
In that decision, the Court held that the VA has no authority under the
law to assist claimants with the development of evidence in support of a
claim for VA benefits, if the claim is not well-grounded. The proposed
regulation gives a claimant 30 days to submit evidence required to render
a claim well-grounded (as defined by the regulation), following the VA’s
written notification. During this time, if it has not already done so, the
VA must obtain service medical records and any outstanding VA records that
the claimant sufficiently identifies.
The VA will not schedule any examinations or seek to obtain private
medical records during the 30-day period. If evidence sufficient to render
the claim well-grounded is not received by the deadline, the VA will deny
the claim as not being well-grounded.
The regulation also contains certain limited exceptions to these
procedures that allow for some development, even if the claim is not
well-grounded. Examples include: claims filed within one year of
separation from active service; evidence of medical treatment being denied
due to a lack of funds; the submission of competent medical evidence of
terminal illness; combat veterans’ Post-traumatic Stress Disorder claims
supported by competent medical evidence of symptomatology; and in-service
sexual assault victims’ PTSD claims also supported by competent medical
evidence of symptomatology.
VVA believes the regulation as proposed goes beyond the intent of
Congress when it established the reciprocal requirements of a claimant’s
responsibility to submit a well-grounded claim and the VA’s duty to
assist in the development of claims for benefits. Furthermore, it is
inevitable that the courts will declare the regulation invalid under their
precedential decisions, since the regulation calls for limited VA
assistance prior to a determination that a claim is well-grounded. The VA
has taken our comments under consideration.
On March 23, VVA and several other VSOs testified before the House
Committee on Veterans’ Affairs Subcommittee on Benefits with respect to
proposed legislation H.R. 3193, the Duty To Assist Veterans Act. This bill
abolishes well-grounded claim prerequisites and calls for the VA to
develop claims at the outset. A similar bill has been introduced in the
Senate, S. 1810. VVA will continue to work with senators, representatives,
congressional staff, other service organizations and the VA until this
issue has been satisfactorily resolved.
On February 18, the VA issued a proposed regulation to implement a
successful pilot program, known previously as the Decision Review Officer
(DRO) Program. The regulation would allow a claimant who has filed a
timely Notice of Disagreement to obtain de novo (i.e., start
from scratch) review of an adverse rating decision by certain VA
adjudicators. Essentially a mediation process, the new program allows
veterans and their service representatives to sit down in an informal
setting with the reviewing official and discuss the claim(s) at issue.
The reviewer, who did not participate in the appealed decision, is
empowered to conduct whatever additional development is necessary to
adjudicate the claim on the merits and to overturn or revise an adverse
rating action. The reviewer is further required to advise the claimant of
the evidence necessary to render the claim well-grounded. Prior to the
reviewer’s decision, the parties must agree that the evidence in the
veteran’s (or other claimant’s) claims file constitutes the entire
record to be considered. Should the reviewer uphold the rating decision,
the claim may be appealed to the BVA.
Reports from those who have participated in the pilot program have been
extremely favorable. Statistics demonstrate that these programs have
resulted in a substantial decline in the number of appeals taken to the
BVA. This process provides a great opportunity to win our cases at the
regional office level. A final regulation is expected later this year.
In the past year, more than 29 million veterans benefits payments have
been issued. However, not all recipients are aware there are several
choices concerning how they receive their benefits. Recently, the U.S.
Treasury Department announced a new payment method. Currently, veterans
can choose from three different payment methods.
The first choice is through direct deposit. More than 75 percent of VA
beneficiaries choose this option for receiving benefits. For those who
have an existing account at a financial institution, this option insures
that payments go directly into the recipient’s account. Veterans and
dependents do not have to wait in line to cash or deposit their checks,
and the chance of losing a check or having it stolen ie eliminated.
For veterans’ beneficiaries who do not have a current bank or credit
union account, the Treasury has developed a new type of account, the
Electronic Transfer Account (ETA). This is a low-cost, federally
insured account that is available to all federal benefits recipients. The
account costs three dollars per month and allows at least four cash
withdrawals and four balance inquiries per month.
In eight states--Alabama, Arkansas, Florida, Georgia, Kentucky,
Missouri, North Carolina, and Tennessee--veterans beneficiaries can
receive federal and state benefits using a single card. The Benefits
Security Card gives beneficiaries access to benefit payments at
ATMs, point-of-sale terminals, and financial institutions. A small monthly
fee is required.
Finally, beneficiaries can still receive checks in the mail. Benefit
payments will not be withheld or delayed, no matter which payment option
you select. To learn more about payment choices, call 877-838-2778.