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Veterans Clinic ABC
Training/Accreditation
•Angela Drake – drakea@missouri.edu
▫ 417.276.1218
•Amy King – office, daily
▫ kingac@missouri.edu
▫ 256.322.0588
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Things we will cover in this afternoon
• Overview of the Department of Veterans Affairs
• Basic Eligibility Requirements and Initial Considerations
• Service-Connected Disability Benefits
• Establishing Disability Percentage Ratings
• Pension
• Survivor Benefits
***************************
• Application for Benefits and Initial Administrative Appeal/FDC
• Board of Veterans Appeals
• Court of Appeals for Veterans Claims/Settlement and Arguments
to make
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Benefits Claims Hierarchy
Supreme
Court
US Court of
Appeals for the
Federal Circuit
US Court of Appeals for
Veteran Claims
Board of Veteran Appeals
Regional Office
4
Veterans BenefitsSupreme
Manual
–the
BIBLE
Court
US Court of
Read the statutes and regulations
too, find the manual
Appeals
provisions. Do the jigsaw
puzzlefor the
Federal Circuit
US Court of Appeals for
Veteran Claims
Board of Veteran Appeals
Regional Office
5
Overview of the Department
of Veterans Affairs
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DEPARTMENT OVERVIEW
A. Federal Mission and Goals
 The Department's mission is to serve America's veterans and
their families with dignity and compassion and to be their
principal advocate in ensuring that they receive medical care,
benefits, social support, and lasting memorials promoting the
health, welfare, and dignity of all veterans in recognition of
their service to this Nation.
Office of Human Resources and Administration, Department of Veterans Affairs: 2010 Organizational Briefing Book 1,
http://www.va.gov/ofcadmin/docs/vaorgbb.pdf (August 2011).
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DEPARTMENT OVERVIEW
B. Federal Statistics
VA is the second largest Federal Department
and has hundreds of thousands of employees.
VA has an enormous budget – excess of $150
billion with over half going out in the form of checks to
veterans and their families with the remainder mostly
for health care
• VA is comprised of a Central Office (VACO), in
Washington, DC, and field facilities – three arms:
1. Veterans Health Administration (VHA),
2. Veterans Benefits Administration (VBA), and
3. National Cemetery Administration (NCA).
FY2013 President’s Budget, February 13, 2012.
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Basic Eligibility
Requirements & Initial
Considerations
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DEFINITION OF A VETERAN
A. Who Is a Veteran?
• “ 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.S. § 101(2); 38 C.F.R. § 3.1(d)
(2011).
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ELIGIBILITY & CHARCTER OF DISCHARGE
A. Character Of Discharge
•
In order to satisfy the definition of a veteran, that individual must
have been discharged or released from military service “under
conditions less than dishonorable.” 38 C.F.R. § 3.12(a) (2011)
B. Note, there are various types Of Discharge
1. - i.e. “other than honorable” – can still sometimes get VA benefits
2. - distinct from “discharge upgrade”
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ACTIVE SERVICE REQUIREMENTS
A. “Active Military, Naval, Or Air Service”
•
Active military, naval, or air service is also required to qualify as a
veteran for purposes of VA benefits.
B. What Does Active Service Include?
1. Active Duty.
2. Training, when injury incurred or was aggravated.
3. Reserve and National Guard when called to serve on federal active
duty.
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WARTIME OR PEACETIME SERVICE
• A. Military Service Classified As Either Wartime Or
Peacetime Service
1. This is an important distinction because significant advantages exist
for veterans with wartime service.
• B. Congressionally Designated Wartime Periods
(relevant):
1.
2.
3.
4.
World War II: December 7, 1941 – December 31, 1946
Korean Conflict: June 27 1950 – January 31, 1955
Vietnam Era: August 5, 1964 – May 7, 1975.
Persian Gulf War: August 2, 1990 – date to be prescribed by
Presidential proclamation.
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WILLFUL MISCONDUCT
A. What Is Willful Misconduct?
An act involving conscious wrongdoing or known prohibited
action. It involves a deliberate or intentional wrongdoing with
knowledge of or wanton and reckless disregard of its probable
consequences. 38 C.F.R. § 3.1(n) – (n)(1) 2011.
B. Impact
A determination by the VA that injury or disease was the result
of willful misconduct creates a bar to any benefits that may be based on
the disability. 38 C.F.R. § 3.1(n) 2011.
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C. Examples Of What Is And Is Not Considered Willful
Misconduct
1. Alcohol is willful misconduct. 38 C.F.R. § 3.301(c)(2) (2011).
2. Drug abuse is willful misconduct. 38 C.F.R. § 3.301(d) (2011).
3. Residuals of venereal disease is not willful misconduct. 38 C.F.R. §
3.301(c)(1) (2011).
4. Suicide is not considered willful misconduct, so long as the deceased
veteran was of unsound mind at the time of suicide. 38 C.F. R. § 3.302
(a) – (b) (2011).
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Establishing Service
Connected Disability Benefits
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COMPENSATION REQUIREMENTS
Basic Prima Facie Case
 A veteran seeking service connected disability compensation must
satisfy three fundamental requirements before the VA will grant
compensation benefits.
1.
2.
3.
There must be competent evidence of a current disability.
There must be medical, or in certain circumstances, lay evidence of inservice occurrence or aggravation of a disease or injury.
There must be competent evidence of a link or nexus between the inservice occurrence or aggravation of a disease or injury and the current
disability.
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Nexus - Five Legal Theories
1.
2.
3.
4.
5.
Direct Service Connection.
Aggravation.
Presumptive Service Connection.
Secondary Service Connection.
VA Malpractice (Section 1151
Claim)
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STATUTORY EVIDENTIARY STANDARD
• The standard of proof that a claimant must satisfy for an
award of benefits is commonly called the “benefit of the
doubt” standard.
• 38 U.S.C. 5107(b).
• This applies to all elements of service connection.
• “AS LIKELY AS NOT”
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Establishing Disability
Percentage Rating
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Rating Schedule
Once service connection is established, the VA assigns the
appropriate disability rating based on impairment of earning
capacity in civil occupations.
Each disability relates to a series of diagnoses, each with a
numerical diagnostic code.
The degree of disability increases as the severity of the
symptomatology becomes greater which will lead to a
higher disability percentage rating.
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SINGLE FINGER AMPUTATIONS
Major/Minor
5152 Thumb, amputation of:
With metacarpal resection......................................................
At metacarpophalangeal joint or through proximal
phalanx....................................................................................
At distal joint or through distal phalanx....................................
5153 Index finger, amputation of
With metacarpal resection (more than one-half the bone
lost)…………………………………………....................................
Without metacarpal resection, at proximal interphalangeal
joint or proximal thereto..........................................................
Through middle phalanx or at distal joint…………………….
5154 Long finger, amputation of:
With metacarpal resection (more than one-half the bone
lost)............................................................................................
Without metacarpal resection, at proximal interphalangeal
joint or proximal thereto...........................................................
38 CFR 4.71a (2010).
40 / 30
30 / 20
20 / 20
30 / 20
20 / 20
10 / 10
20 / 20
10 / 10
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VA Math
Direct Calculations of Multiple Disabilities




Veteran has following ratings: 70%, 30%, 20%
This does not mean the Veteran has a 120% disability rating.
Instead:
1st Rating + ((100%- 1st Rating) x 2nd Rating)= Combined Rating
 70% + (30% x 30%) = 79%
 79% + (21% x 20%)= 83.2 %
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Disability Percentages
Levels of Payment
The following are examples of the payments corresponding to levels of
disability
 10% Rating = $133/month(no dependents)
 50% Rating = $836/month (no dependents)
 100% Rating = $ 2,907/month (no dependents)
 http://www.benefits.va.gov/COMPENSATION/resources_comp01.
asp
Disability compensation is not taxable and (generally) is not subject to
garnishment.
38 U.S.C. § 5301(a)(1) (2003).
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Special Evaluation Compensation Categories
Total Disability Based on Individual Unemployability
(TDIU)
1.
The veteran cannot be engaged in and must be unable to engage in
a substantially gainful occupation, AND
2. The veteran should have:
a) One service connected disability rated above 60%, OR
b) Two or more service connected disabilities, one of which is at
least 40% and sufficient additional service connected
disabilities to bring it up to a combined rating of 70%.
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Later Evaluations of a Service-Connected
Condition
VA Discretion to Reduce or Increase a Disability
Percentage
The VA, in its discretion, may choose to reevaluate a service connected
condition and change the disability rating.
– 38 C.F.R. § 3.327(a)(2010).
VA can reexamine at any time but reexaminations are generally ordered if
evidence indicates a material change in disability since the last evaluation
– Usually done 2-5 years within the last evaluation.
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Special Monthly Compensation
• Above the percentages, veterans may be eligible for additional
compensation.
• Examples:
▫ Loss of a Creative Organ:
▫ Housebound (or 100% =60%)
$3,152/month
▫ Aid & Attendance:
$100/month
$3,504/month
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Pension Benefits
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General Requirements
(1) wartime service that ultimately results in a discharge under other
than dishonorable conditions, and
(2) permanent and total disability (age 65 or nursing home or SSDI or
SSI)
and
(3) demonstrated need. The VA determines need by calculating the
income and net worth of the claimant, applying it to their chart.
(4) Post 9/08/80 must have served for minimum period (24 mos or
full period)
Periods of War:
1.
2.
3.
4.
World War II: December 7, 1941 – December 31, 1946
Korean Conflict: June 27 1950 – January 31, 1955
Vietnam Era: August 5, 1964 – May 7, 1975.
Persian Gulf War: August 2, 1990 – date to be prescribed by
Presidential proclamation.
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The Requirement of Permanent and Total Disability
• Veterans claiming entitlement to pension benefits must be
permanently and totally disabled from non-service-connected
conditions or a combination of non-service-connected and serviceconnected conditions. 38 U.S.C.S. § 1521(a); 38 C.F.R. § 3.342(a) (2008).
• Veterans are presumed to be permanently and totally disabled if:
• 65 years of age or older
• A patient in a nursing home
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The Requirement of Need
• Pension is a needs based program. Even if a veteran satisfies
all of the other requirements, if the veteran's countable income
exceeds the maximum annual pension rate (MAPR), a claim for
improved pension will be denied.*
-Current MAPR (with spouse) : $16,851
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There are 3 Different Pension
Programs
• All based on disability and need
• Improved Pension – post January 1, 1979
• Section 306 Pension – 1960-1978 (include
income of spouse)
• Old-law Pension -(spouse income not included)
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Countable Income
• Congress creates Maximum Allowable Pension
Rate; add dependents
• Then deduct countable income on a prospective
basis
• Income attributable to a veteran’s dependants is
counted as “income for VA purposes and
deducted from MAPR
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Exclusions and Deductions from Income for Pension Purposes
• Sources of income excluded or deducted from income for VA
improved pension purposes include*:
1.)Welfare
2.)Fire insurance proceeds
3.)Profit from sale of property
4.)Funds in joint accounts acquired by death
5.)Medical Expenses
6.)Interest accrued on retirement annuity accounts
7.)Expenses of last illness and burials
8.)Educational Expenses
* 38 U.S.C.S. § 501(a); 38 C.F.R. § 3.272 (2010).
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The Formula Used to Calculate Improved Pension
• Simple Income Example:
If, for example, the annual income limit for a Veteran,
as set by Congress, is $10,000 and your income is
$7,000, your VA pension will be $3,000 ($10,000 $7,000 = $3,000) paid in monthly installments
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Special Monthly Pension (SMP)
Special Monthly Pension (SMP) is awarded for disability levels
exceeding permanent and total disability. There are two types of SMP:
1.) Housebound benefits (HB). These benefits are awarded when the
VA determines that a veteran who has already been determined to be
disabled, is now also permanently housebound (essentially confined to
his or her home).
2.) Aid & Attendance (A&A). If the VA determines that a veteran, who
has established entitlement to pension, needs the regular aid and
attendance of another person.
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Information That Must be Provided Annually by
Current Improved Pension Beneficiaries
• The VA is authorized to require pension applicants and recipients
to file annual reports detailing their previous year's income (as well as
that of their spouses and dependent children) and estimating
anticipated income for the current year. 38 C.F.R. §§ 3.256, 3.277 (2010).
• The VA calls these reports Eligibility Verification Reports (EVRs)
and uses them to determine whether applicants and current pension
recipients are in fact entitled to the benefits they receive.
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Failing to Report Income
• If a veteran fails to report income or underreports income to
the VA, a debt may be created. This debt is usually referred to
as an overpayment.
• An overpayment may occur when a veteran gets divorced and
then forgets to inform the VA of the dissolution.
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If VA Determines there is an Overpayment
• Dispute Validity or Amount of Debt
▫ No deadline for submitting this dispute
▫ However, if it is done within 30 days collection will be
stayed
• Request a Waiver of Collection
▫ Must be submitted within 180 days of notice
▫ May not waive the debt, if there is any indication of fraud or
bad faith
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Survivor Benefits
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Types of Survivor Benefits
• Accrued Benefits / Substitution
• Dependency and Indemnity Compensation (DIC)
• Death Pension
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Qualifying Family Relationships
•
•
•
•
•
•
Spouse
Surviving Spouse
Child
Surviving Child
Dependent Parent
Surviving Parent
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“Surviving Spouse”
Spouse of veteran at time of veteran’s death and lived with veteran
continuously from date of marriage to date of veteran’s death.
Surviving Spouse MAY also have to prove one or more of the
following:
1. Married at least one year prior to the veteran’s death.
2. Continuous cohabitation with the veteran during the marriage;
and
3. No remarriage after the Veteran’s death.
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Recent Supreme Court Decision
• On June 26, 2015, the Supreme Court held in
Obergefell v. Hodges that the 14th Amendment
to the U.S. Constitution requires a state to
license a marriage between two people of the
same sex and to recognize a marriage between
two people of he same sex when their marriage
was lawfully licensed and performed out–of
state.
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VA Now Recognizes Same Sex
Marriage
• Go to www.va.gov/opa/marriage to see the
guidance chart
• Note, VA will also recognize common law
marriage if the state recognizes the same
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Surviving Child
• Biological, Adopted, Stepchild
• Unmarried
• Qualifying Age
▫ Under 18 years of age
▫ Between 18-23 if pursuing course of education
 38 U.S.C.S. § 104(a)
▫ Any age if child became incapable of self-support before
reaching the age of 18. “Helpless Child”
 38 C.F.R. § 3.315(a) (2010)
See: 38 CFR § 3.57 (2010)
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Dependent or Surviving Parent
•
•
These benefits are given only in limited circumstances.
Key eligibility requirements:
▫
Parental relationship to the veteran
▫
Financial dependency of the parent
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Accrued Benefits
If a claim for benefits is pending when a claimant dies,
and VA later determines that veteran would have been
awarded benefits, survivor is entitled to “accrued
benefits.”
However, if Claimant dies before filing the claim for a VA
benefit, the claim for the benefit dies as well.
 Richard v. West, 161 F.3d 719 (Fed. Cir. 1998).
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Substitution
 If a claim for benefits is pending when the claimant dies and the
claimant dies after October 9, 2008, a qualifying surviving family
member can request to be substituted for the deceased claimant
and continue to pursue the claim.
 Substitution vs. Accrued Benefits
 Accrued benefits claimant cannot submit any additional
evidence
 Time limits for filing are the same
 Both require that a claim be “pending”
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Pending Claim
• General Rule: Where the appeal period has not yet expired, case
is still pending.
▫ 38 CFR § 3.160(c) (d) (2010)
• Taylor v. Nicholson (2007)
▫ CAVC: Claim was still pending at time of veteran’s death
because he had 1 year from the date of the RO decision to file
a Notice of Disagreement (NOD)
 (May 9, 2007) No. 05-0625
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Dependency and Indemnity Compensation (DIC) and
Death Pension
• Available to survivors of veterans whose deaths have been
determined to be service connected.
• Eligible Parties:
▫ Surviving spouse
▫ Surviving child, or
▫ Surviving parents
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Availability of DIC and Death Compensation
Monthly DIC benefits available in two situations:
 Service-connected death of a veteran
 Veteran had a service-connected disability that was totally
disabling for the last 10 years, 5 years, or, in some cases, one year
of the veterans’ life.
 38 U.S.C.S. § 1318
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Entitlement to DIC
• DIC claims filed after January 21, 2000:
▫ Veteran must have filed a claim for benefits while alive.
▫ If no claim was filed while the veteran was alive, there is no
possibility of DIC benefits for survivors.
 38 C.F.R. 3.22 (2007)
 NOVA II, 314 F.3d at 1378
▫ DIC intended to provide continued support to survivors who
had become dependent on VA disability compensation during
veteran’s lifetime.
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Dependency and Indemnity Compensation
• Surviving Spouse is first in line to receive benefits
▫ VA will increase benefits to reflect surviving children
▫ If surviving spouse does not apply, or if there is no surviving
spouse, a qualifying child is next in line to receive DIC
benefits.
 38 U.S.C.S.§ 1313
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Filing for DIC
• No time limitation to file, But:
▫ If claim is filed within 1 year of death and granted, retroactive
benefits will be awarded back to the 1st day of the month
following Veteran’s death.
 38 U.S.C.S. §§ 5111(a), 5110(d).
▫ Claims filed after 1 year of death, and granted, only receive
benefits dating back to the 1st day of the month after the month
in which the claim was received.
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Surviving Spouse
DIC Payment Rates
• Death on or after January 1, 1993:
▫ Basic Monthly Rate = $1215
▫ $301 per additional child
• Death before January 1, 1993
▫ DIC based on highest pay grade attained by deceased veteran.
▫ If this amount is less than the standard monthly base rate for
deaths on or after January 1, 1993, VA pays the standard
monthly base amount.
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Surviving Child
DIC Payment Rates
Surviving benefits only payable to surviving children where there is no
surviving spouse.
 38 U.S.C.S. § 1313(a)
 Children paid in divided equal shares set by statute.




1 child:
$ 513
2 children: $ 738
3 children: $ 963
4 children: $1,146
- 5 children: $1,329
- 6 children: $1,512
- 7 children: $1,695
- 8 children: $1,878
http://www.benefits.va.gov/COMPENSATION/resources_comp03.asp
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Restored Entitlement Program for
Survivors
• Applies where service member died on active
duty before 8/13/81
• Designed to compensate for Social Security
money lost as a result of the Consolidated
Omnibus Budget Reconciliation Act of 1981
• Can file claim anytime
• See VBM at 7.3.3
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Death Pension
•
•
•
•
•
Very similar to pension describe above
Needs based
No time limit within which claim need be made
Surviving spouse is entitled
Surviving dependent may be if under the care of
a guardian
• See VBM 7.3.4