Veterans Benefits

Document Sample
Veterans Benefits Powered By Docstoc
					 Overview of Veterans’ Benefits

                    February 27, 2008 Equip for Equality
                          Disability Rights Consortium
Presented by
John F. Costello, Jr.        Prof. Joseph R. Butler
Veterans’ Rights Project     Veterans Legal Support Center
Legal Assistance Foundation The John Marshall Law School
(312) 347-8340              (312) 427-2737 ext. 346
Objective of Presentation
   Provide an overview of veterans benefits;
   Create awareness of veterans’ need for legal
   Allow issue-spotting and referral to highest and best
    resource for assistance; and …
   Motivate you to answer the call for assistance from our
   Statistics on Veterans
   VA Benefits in General
       Who Is a “Veteran”: Basic Eligibility Requirements
       Overview of Major Disability Benefits Programs
           Service-Connected Disability Compensation
           Needs-Based Disability Pension
       VA and SSA Interplay
       Benefits for Survivors
       Overview of Claims Process
       Attorney Fees
   Resources for Assistance
       LAF’s Veterans’ Rights Project – Legal and Educational
       John Marshall Law School, Veterans Legal Support Clinic & Center – Legal and
       Illinois Attorney General, Veterans Rights Bureau – Educational
       Rehabilitation Institute of Chicago – TBI Screening
   Q&A
Statistics on Veterans
   Show of hands
       Veterans
       Family members of Veterans
Statistics on Veterans
   Of the 25 million veterans currently alive, nearly
    three of every four served during a war or an official
    period of hostility.
     In Cook County there are over 250,000 veterans
   About 1/4 of the nation's population -- approximately
    70 million people -- are potentially eligible for VA
    benefits and services because they are veterans,
    family members or survivors of veterans
   Between 1/4 to 1/3 of all homeless are veterans
     In Cook County there are an estimated 25,000 to
       35,000 homeless veterans
Benefits in General

   United States Department of Veterans Affairs
    (VA) benefits range from healthcare,
    compensation for service-connected
    disabilities, needs-based pensions,
    education, vocational training, home loan
    guarantees, life insurance, and burial and
    memorial benefits.
   Certain VA benefits are also provided to
    eligible dependents and survivors of
Benefits in General

   The VA benefits system is “paternalistic”
       In other words, it favor the veteran
           Reason: service members do not receive workers
            compensation or disability insurance from the
            Department of Defense while in military service, and
            therefore, this system is designed with that in mind
Who Is a “Veteran”: Basic Eligibility

   A “veteran” is defined as a “person who
    served in the active military, naval, or air
    service, and who was discharged or released
    therefrom under conditions other than
    dishonorable” 38 U.S.C. § 101(2); 38 C.F.R.
    § 3.1(d).
Who Is a “Veteran”: Basic Eligibility

   Active duty requirement
   A “veteran” must have “active military, naval,
    or air service,” includes, inter alia:
       Full-time service in Army, Navy, Marine Corp, Air
        Force or Coast Guard
       Training, if disease or injury incurred or
        aggravated in line of duty
       Guard or Reserve only if called to serve on
        regular active duty
Who Is a “Veteran”: Basic Eligibility

Character of discharge is important
   A “veteran” must have been “discharged or released therefrom under conditions
    other than dishonorable”
   Military services generally have 5 types of discharges:
    1.   honorable discharge (HD)
    2.   discharge under honorable conditions (UHC) or general discharge (GD)
    3.   discharge under other than honorable conditions (UOTHC)
    4.   Bad conduct discharge (BCD)
    5.   Dishonorable discharge (DD) or dismissal (if officer),
   Certain administrative discharges by the Department of Defense do not carry a
    characterization of service, and VA reviews on a case-by-case basis to
    determine if “other than dishonorable”
        “personality disorder” – pre-existing condition
          Recent press stories of this practice
   Dishonorable, bad conduct discharges, or other conduct may operate as
    “statutory bar” VA benefits
            Former servicemembers can seek a discharge upgrade from a Military
             Discharge Review Board or the Board for Correction of Military Records
                “discharge upgrades”
Who Is a “Veteran”: Basic Eligibility

Length of service requirement
 Before September 8, 1980, there was no
  minimum length of service requirement to
  establish general eligibility for most VA
 After September 8, 1980, a veteran must
  have served 24 months of active duty or “full
  period for which … called or ordered to active
  duty” to be eligible for VA benefits.
Who Is a “Veteran”: Basic Eligibility
Wartime versus peacetime service
   The following are periods of wartime designated by Congress for
    purposes of VA benefits:
          Indian Wars – January 1, 1817 – December 31, 1898
          Spanish-American War – April 21, 1898 – July 4, 1902
          Mexican Border War – May 9, 1916 – April 5, 1917
          World War I – April 6, 1917 – November 1, 1918
          World War II – December 7, 1941 – December 31, 1946
          Korean Conflict – June 27, 1950 – January 31, 1955
          Vietnam Era - August 5, 1964 (February 28, 1961 if “in-country”) – May 7,
          Persian Gulf War – August 2, 1990 – date to be determined
          NOTE: Congress has not enacted legislation that would make the periods
           covering the invasions of Grenada (Operation Urgent Fury 1983) and Panama
           (Operation Just Cause 1989) “wartime” service.
   Certain benefits (ex. needs-based pension) are available only to
    veterans that served during wartime
Overview of Major Disability Benefits

   Service-Connected Disability Compensation
     Disability compensation is a monetary benefit paid to veterans
      who are disabled by an injury or disease that was incurred or
      aggravated during active service.
   Needs-Based Pension
     Pension is a monetary support benefit paid to permanently and
      totally disabled (not service-connected) veterans with low
      incomes who served during a defined period of war.

   Prohibition Against Dual Receipt of VA Compensation and VA
    Pension Benefits
     On occasion, a veteran may be entitled to both compensation
      and pension. The VA is prohibited from paying both benefits
      concurrently. 38 U.S.C. § 5304(a); 38 C.F.R. § 3.700. A veteran
      entitled to both must elect to receive one benefit or the other.
Service-Connected Disability Compensation

   Service-connected disability compensation is available
    where disability claimed was either incurred or
    aggravated in the line of duty, not the result of willful
    misconduct, and the veteran’s discharge was other
    than dishonorable, 38 U.S.C. § 1110
   The “in line of duty” requirement is very liberal
     Only a temporal connection to the period of service
      beginning with induction and ending with discharge is
      required, 38 C.F.R. § 3.303(a)
         Example: A soldier that injures a knee while skiing on
          leave in Breckenridge has just as much right to disability
          compensation as a soldier that injures knee jumping
          from helicopter into combat in Baghdad.
Service-Connected Disability Compensation

3 Requirements to Obtain :
1. medical diagnosis of current disability

2. evidence of in-service occurrence or
   aggravation of a disease or injury
3. link or nexus (usually medical evidence)
   between the in-service occurrence or
   aggravation of a disease or injury and the
   current disability
Service-Connected Disability

1. medical diagnosis of current disability
 Veterans can submit VA or private medical
 VA has a statutory “duty to assist” claimant to
  obtain medical evidence by making
  “reasonable efforts,” 38 U.S.C. § 5103A,
  which include ordering an examination by a
  VA physician
Service-Connected Disability

2. in-service occurrence or aggravation
   VA places great weight on contents of military
    personnel and medical records
       Unit histories
       Deck logs
   VA is required to consider lay evidence
       Veterans own statements describing in detail
        circumstances of injury or event
       Private medical records
       Buddy statements
       Newspaper articles
       Letters to family / friends
       Internet resources can be of tremendous value
Service-Connected Disability

2. in-service occurrence or aggravation
   Lay evidence may be enough when issue relates to observable
    event (ex. statement of combat veteran concerning bullet
    wound), but if circumstances raise a medical issue then medical
    evidence is required (ex. “triggering event” for post traumatic
    stress disorder). See, e.g., Espiritu v. Derwinski, 2 Vet. App. 492,
    494-495 (1992).
   Relaxed evidentiary standards for combat veterans, 38 U.S.C. §
    1154(b), requires VA to accept veteran’s lay statement if event:
    (1) occurred while “engaged in combat with the enemy;”
    (2) statement is “consistent with the circumstances” of such
    service; and
    (3) there is not “clear and convincing evidence to the contrary”
Service-Connected Disability

3. Evidence of Link or Nexus
   5 ways to establish service connection
    1.     Direct service connection – medical evidence
    2.     Aggravation – medical evidence and presumption of
    3.     Statutory Presumption
    4.     Secondarily service connected
    5.     Section 1151 and FTCA claims
        VA must consider all 5 ways, Schroeder v.
         West, 212 F.3d 1265 (Fed Cir 2000)
Service-Connected Disability
Medical Evidence in General
 “competent medical evidence” must establish that “it is
  as likely as not” that current disability resulted from
  disease, injury, or precipitating event during service. 38
  U.S.C. § 5107(b); 38 C.F.R. § 3.102.
       referred to as “benefit of the doubt” standard
       In other words, a 50% chance
   “competent medical evidence” can come from
       Letter or statement of VA or private physician
       Evidence in veteran’s service medical records and treatment records
       Evidence in medical textbooks, treatises or journals
   Medical evidence not required if nexus is presumed
       Chronic disability diagnosed in service, 38 C.F.R. § 3.309(a)
       Disability presumed to be service-connected is diagnosed within
        presumptive period following service, 38 C.F.R. §§ 3.307(a); 3.309
Service-Connected Disability
     Delayed Direct Service-Connection
         An event in-service caused the veteran to suffer a disability or
          disease many years later, 38 C.F.R. § 3.303(d)
             Hearing loss due to noise exposure
             Arthritis due to trauma
             PTSD due to XYZ
     Chronicity, 38 C.F.R. § 3.309(a)
         If veteran was diagnosed with a chronic disability while in service
          and currently suffers from the same chronic disability, then the VA
          assumes the connection.
             Arthritis – a/k/a - you try humping around a 100 pound rucksack
             Myelitis – spinal cord inflammation linked to exposure to wet or cold
     Continuity of Symptomatology
         Shown through military or service medical records that condition
          diagnosed or manifested during service, or demonstrating by
          medical opinion that in-service event caused current condition
Service-Connected Disability
     Veteran shows worsening of pre-existing condition due to
      military service
         Must be more than the natural progression of a condition
     Certain disabilities cannot be service-connected if the result of,
      for instance, “congenial or developmental defects” or “personality
      disorder and mental deficiency.” 38 C.F.R. §§ 3.303(c); 4.9;
         However, veterans are presumed to be in “sound condition” at
          induction to military service, unless otherwise noted in
          induction examination, 38 U.S.C. § 1111; 38 C.F.R. § §
             Presumption of “sound condition” can be rebutted only by “clear and
              unmistakable evidence” VA Gen. Coun. Prec. 3-03 (July 16, 2003)
Service-Connected Disability
Statutory Presumption
   Congress has determined that certain disabilities and conditions
    are presumed to be related to military service
     Chronic diseases: manifested within defined period of time, 38
       C.F.R. §§ 3.307(a)(3) and 3.309(a)
     Tropical Diseases: manifested within defined period of time, 38
       C.F.R. § 3.309(b)
     Prisoners of War: manifested at any time, 38 C.F.R. § 3.309(c)
     Persian Gulf Veterans: manifestation of “undiagnosed disability,”
       38 C.F.R. § 3.317(b)
     Radiation-Exposed Veterans: 38 C.F.R. §§ 3.309(d) and 3.311
     Agent Orange: 38 C.F.R. §§ 3.309(e) and 3.313
   In other words, these presumptions relieve a qualifying veteran
    with a qualifying condition from the obligation to show a nexus
    between service and the condition.
Service-Connected Disability

Secondary service-connection
   If a service-connected condition causes or
    aggravates a second condition, then that
    second condition is treated as also service-
    connected, 38 C.F.R. § 3.310
   Compensated just like original service-connected
       Examples: depression as a result of physical
        impairment, hip condition as a result of knee condition,
Service-Connected Disability

Section 1151 and FTCA Claims
    If disability or disease was caused by VA medical
     treatment or vocational rehabilitation, then that
     disability or disease is treated “as if” connected to
     service, 38 U.S.C. § 1151 – legal fiction
    Also potential for Federal Tort Claims Act (FTCA)
     cause of action, 28 U.S.C. §§ 1346(b), 2671-2680
        Must file administrative claim with VA prior to filing suit in
         U.S. district court, 28 U.S.C. § 2675(a)
            administrative claim must be filed within 2 years after claim
             accrues, and U.S. district court lawsuit must be filed within 6
             months of determination on administrative claim
Service-Connected Disability
   Once a condition is found to be service-connected, a percentage of
    disability is assigned for compensation purposes. The diagnostic code
    (DC) for the condition and the evidence of symptomatology determine
    the exact percentage assigned. See 38 C.F.R. Part 4.
   Description of Benefit
       Disabilities are rated on a percentage scale and monthly awards determined
        according to assigned percentage.
       Percentages range from 10% to 100%, and monthly awards range from
        $115 to $2,471 per month.
           CONTRAST with Social Security Administration – disabled or not
       Veterans may be entitled to a 100% rating where veteran is unable to
        engage in substantially gainful occupation – termed total disability based
        on individual unemployability (TDIU or IU), 38 C.F.R. § 4.16
       Veterans may be entitled to special monthly compensation amounts for
        certain severe disabilities.
           Examples:
               Aid and Attendance
               Housebound
Needs-Based Disability Pension
    5 Basic Eligibility Criteria
    1.       Veteran must be discharged under other than dishonorable conditions
    2.       Veteran must have served during a “war-time period”
    3.       Veteran must have limited income and net worth ~ “needs test”
    4.       Veteran must be permanently and totally disabled
                 Need not be service-connected
    5.       Disability cannot be the result of the veteran’s “willful misconduct,”
             examples of which include substance addictions and venereal diseases. 38
             C.F.R. § 3.1(n), 3.301(b).
                 However, exceptions exist if what would ordinarily be attributable to willful
                  misconduct is secondary or caused by another service-connected disability.
                  38 C.F.R. § 3.301(c)(2),(3).
                     For example, lung cancer due to smoking might be covered if that substance
                      addiction was deemed to be secondary to service-connected post traumatic
                      stress disorder. Arguments have been made that the substance addiction was a
                      form of “self medication.”
Needs-Based Disability Pension

   Determining the Monthly Benefit
     “Needs Test” - veteran’s “countable income”
      cannot exceed the Maximum Annual Pension
      Rate (MAPR)
     Amount of MAPR varies depending on number of
      dependents and need for services
           2007 MAPR for single veteran is $10,929
       Monthly payment = (MAPR – countable income) /
VA and SSA Interplay
   A veteran can receive Service-Connected
    Disability Compensation and SSDI concurrently
    – there is NO offset
   However, a veteran cannot receive Needs-
    Based Disability Pension and SSI concurrently –
    there is an offset

   Practice Pointer for Low Income Clients: VA
    pension rates are much more generous than SSI
Benefits for Survivors
Main Benefits Programs for Survivors:
     Dependency and Indemnity Compensation
         Service-Connected
             Paid to dependents of veterans whose deaths were caused by service-
              connected conditions, 38 U.S.C. § 1310, … or …
             Paid to dependents of veterans that received / were entitled to receive
              disability compensation for a defined period of time prior to death, 38
              U.S.C. § 1318(b)(1,2,3)
     Death Pension
         Non-service Connected
             Needs-based pension with eligibility criteria for survivors similar to that of the
              eligibility criteria for veterans disability pension – “wartime” service and low
             However, the MAPR for survivors is much lower than the maximum annual
              pension rate (MAPR) for veterans, and the MAPR for a surviving spouse is
              only $7,329
     Burial and Memorial Benefits
Overview of Claims Process
Procedure on Claim for VA Benefits
 VA Regional Office (VARO)
       58 VAROs in U.S. – at least one in each State plus DC, Puerto Rico
        and Phillipines
         For Illinois: Chicago VARO at 2122 W. Taylor (Damen & Taylor)
   Board of Veterans’ Appeals (BVA)
     Timeline: substantive appeal must be filed within 60 days of the
      mailing of the SOC or within 1 year from the date the VA mailed
      its decision, whichever is later
   United States Court of Appeals for Veterans’ Claims (CAVC)
     Timeline: notice of appeal must be filed within 120 days after the
      BVA mailed its decision
   United States Court of Appeal for the Federal Circuit
   United States Supreme Court
Overview of Claims Process
   Overpayments
   Any time the VA determines that a monetary payment
    made to a claimant is in excess of what should have
    been paid, a debt is created. Debts of this type are
    commonly referred to as overpayments. VA is
    aggressive in collecting debts.
   2 methods to assist claimants facing overpayments:
       Dispute the existence or amount of the debt
       Request waiver of collection of the debt
Attorney Fees

   Crippling lack of attorneys representing
     Economic Disincentives…
         History of VA regulation of attorney fees
             1862 – 1988
               attorneys could only charge $10 (at risk of imprisonment)
             1988 – 2007
               attorneys could not charge fee at initial administrative
                levels, but could charge “reasonable fee” for advocacy
                after BVA denial (after 2nd stage of administrative
Attorney Fees

    Result…
        Crippling lack of attorneys represent veterans
            Less that 100 coast-to-coast
            Veterans Service Organizations fill the gap and provide
              Disabled American Veterans, Amvets, American Legion,
               Military Order of the Purple Heart, etc.
            About ½ of veterans seeks benefits from the VA pro se
              Veterans with some kind of representation receive,
               on average, $6,225 more per year than
               unrepresented veterans
              Attorneys can make a Tangible Impact
Attorney Fees
    Effective June 20, 2007…Public Law 109-461 The
     Veterans Benefits, Health Care, and Information
     Technology Act of 2006, which provides that claimants may
     hire an attorney earlier in the claims process.
        Attorneys cannot charge fee at initial administrative level
        Attorneys can charge a “reasonable fee” – 20% is
         presumptively proper –after Notice of Disagreement (NOD)
         is filed (after 1st stage of administrative process)
            repeal bill pending in House of Representatives?
                Powerful lobby believes there is no need for attorney involvement
            Proposed regulations for attorney accreditation (i.e., testing)
             pending…still awaiting final regulations
Legal Assistance Resources
   Department of Veterans’ Affairs
   Illinois Department of Veterans’ Affairs
   Illinois Attorney General, Veterans’ Rights Bureau
   LAF Veterans’ Rights Project
   Veterans Legal Support Center & Clinic, John Marshall Law
    School (VLSC)
   National Veterans’ Legal Services Program (NVLSP)
     Publishers of Veterans’ Benefit Manual, which is a recommended
         resource for advocates practicing in the area of veterans’ law.
   National Organization of Veterans’ Advocates (NOVA)
LAF Veterans’ Rights Project
    The Veterans’ Rights Project is the first legal aid clinic of its kind in Chicago
    and hopes to spur attorneys to answer the call for assistance from our veterans
   Assisting veterans and their families with claims for benefits from the
    Department of Veterans Affairs
   Conducting outreach to homeless veterans at area shelters
   Assisting veterans and their families with civil issues ranging from
    reemployment rights to housing accommodations for disabled veterans, as well
    as represent service members and their families in enforcing numerous
    consumer protections provided by the Service Members Civil Relief Act and
    similar state statutes
       Uniformed Services Employment and Reemployment Rights Act (USERRA)
       Service Members Civil Relief Act (SCRA)
       Americans with Disabilities Act (ADA)
       Fair Housing Act
       Corresponding state laws
   Conducting educational outreach to veterans at various VA clinics, community
    colleges, veterans groups in the area
The John Marshall Law School
Veterans Legal Support Clinic
   VLSC is the nation’s first legal clinic at a law school dedicated
    solely to assisting veterans with their benefit claims.
   VLSC consists of 2 aspects:
       Law Clinic
           Attorney and Students represent veterans for VA benefit claims
           Veterans benefits course at JMLS
       Veterans Center
           Manage a statewide network of pro bono attorneys in conjunction
            with the Illinois Supreme Court Commission on Professionalism
           Educational programs
           Center of all veterans issues in Illinois
Illinois Attorney General
Office, Veterans Rights Bureau
   Veterans Public Advocacy Forum
   Veterans Hotline (800) 382-3000
Rehabilitation Institute of Chicago
– TBI Screening Initiative
   Illinois Warriors Assistance Program
       mandates head trauma screening for members of the
        Illinois National Guard after their return and provide a
        confidential, 24-hour helpline for veterans suffering from
        post traumatic stress disorder (PTSD)
       (866) 554-4927
         Illinois veterans from all wars will also have access to the
            TBI screening and the PTSD helpline.

   For more details, please visit
   Q&A

Shared By: